determination and therefore enhanced meant was justifiable nevertheless the amount of the enhancement was excessive i don't see a separate argument on that  enhancement in this case is inappropriate under the circumstances under the agreed egregious test of of hello in a nutshell the district court refused to consider the new hello test the egregiousness and instead it put all of its reasoning into the read the portent factors which are optional but the key thing is the agree just this test out case which the court refused to consider and that is that at the particular under the particular circumstances of the state in which the single letters are not part of it that is they were not you never offered them into evidence either at the trial or on remained from this court which would then have triggered a tested evidence of what at the time of the issuance of the patent was m g a state of mind there is some evidence of what about what the previous issue and state of mind is which doesn't exactly help you that copying of the product with a patent pending mark on it which ended up supporting affirmed one fifty four d royalties  one is that the claims of the published application were invalid on their face they were invalid because of the the  subsequently held that despite that amendment they were substantially the same but m g had no way of knowing whether the patent would issue or when he did issue what the claims would be it wasn't aware of that until the day that suit w low it had not yet over ruled this court's cd says so but what hello said is you have to consider all the circumstances the particular circumstances of the case which includes reverse the willfulness ruling we filed a petition for rehearing that we said we should have a new trial you said we couldn't submit anymore evidence and so if that point we didn't think we could submit and you denied the petition for hearing rearing we didn't think we could submit additional evidence at the trial court but we very heavily relied on the sequel analysis because that's part of the particular circumstances of the case and how close it you have to consider that it's a girl or circumstance evidence but when it came to punishment in read reports it said the district court error because he did not consider that very same evidence that was excluded from appropriately excluded from the jury it said that when it comes to punishment and therefore n g a had reason to doubt the validity of the patent at the time of infringement and that was the focus of hello what was the state of mind at the time of infringement reasons for enhanced damages and that clarification emphasize determining under the particular circumstances of the case whether at the time of infringement the infringer had any reason to doubt the validity of the pat must have decided that you're not going to get in do over in the jury's willfulness find you because we affirm that right right now whether you're right or wrong about whether or not you should have gotten a do over that after we made that decision it was a strategic decision but under the people of the case of the six circuit when you have that kind of a change in the law you've got to consider that that change in the law  consider halo's emphasis on agree just as that is not the case read the port tech itself says that enhanced damages are warranted for agree just infringement and the district court's order addressing enhanced meant both before and after remain and addresses and concludes that n g s infringement was egregious it can issue a procedural question yes going way back to twenty fourteen but before this after the summary judgment ruling here and i went back and trial it so there was a trial that included willfulness and then there was some sort of proceeding that resulted in a quite lengthy opinion about enhancement and fees and so on post trial was there a opportunity for an evidentiary proceeding about the read factories or had all the evidence had to be submitted already so your honor this goes back to the first time th was wasn't post quite close judgement yet was post verdict but like judgement motions and yes during that process to answer your question there was a briefing there was the opportunity to submit declarations on our site and certainly submitted extensive declarations outlining or and outlining our attorneys fees and why we were entitled to our attorneys to be yes district court judge referred to a magistrate trying to won't get too much into the weeds we had a procedure with the magistrate where we had a where willfulness was originally vacated or reversed and then up to the supreme court back down so yes during that during that process there was an opportunity for evidence to be submitted and evidence was the attorney who they brought to court for trial way back in two thousand and twelve and then that precipitated the district judge saying well you really never you would maintain privilege the whole time but now you're going to waive privilege i'm to let you do that and ga but i'm going to require you to sit productive session is present mr karr for deposition during trial and produce any documents you said you said repeatedly have it but if you have any you got to produce them which resulted in them producing six hundred of peaches of documents during trial after representing that there were no documents they do that the evening and it was a wednesday then we're going to take we're going to take mr karr's deposition they said no you're not going to take a zisha putting him on a plane were sending him home and they told the district court judge that the next morning so after having waived the privilege saying they're going to produce the documents to us as ordered by the court in court that puts them all you're going to be sanctioned because you repeatedly represented that the documents there are no documents and now you've produced them they sent him home and they didn't put him on they didn't present a declaration from mr chari either in that period before the intervention to appeal or after the so the point that i wanted to make him a long winded way of making that point is they've never presented any evidence about who authored the opinion or given us any opportunity to take discovery on the author of the opinion people never presented any evidence that anyone at m g a read that opinion letter or that anyone had m c a relied on that opinion letter and they've given us no discovery aside from the six hundred as of documents produce all and we were denied the opportunity to take discovery to show what i think is already apparent from the face of the siegel letter which is that it's not competent course a review of the letter shows that it c discussion of claim construction it contains very little substantive discussion at all it concludes that all claims are not infringed all claims aren't dissipated in all claims or obvious of course the first conclusion tried there are there is there is nothing other than a conclusory statement that the prior art discloses all limitations of the claim for each of the claims there are certain i think that's clear from the face of the letter but  again we were denied discovery to show even further that that those opinions are not competent and not reliable but it's a side the point because there is no evidence of of anybody having read or relied on those the the district court correctly understood the task on remand correctly understood and this court couldn't have been more explicit about it that wilfulness was decided the district the point your honor made willfulness decided they spend most of their time saying we weren't willful we didn't act and that they didn't make an argument really that notwithstanding that we acted in bad faith because our or triple damages so what's the universe in which they can comment can't they come in on an objective the municipal question even if it had been rejected before could they come in now and that from the supreme court's hiller decision so we know from halo that it can't be the deciding factor in terms of the amount whether or not the judge is going to apply one time or three times we know that you know that know that the judge would have to focus on objective reasonableness as long as the judge was more broadly looking at the entire case looking at the claim construction issues as you pointed out your honor looking at the closeness of infringement looking at the closeness of the fences and i know that the judge sort to try and answer your question as directly as i can i don't know that she has to focus on whether any particular defense whether anybody then ga ever reviewed it or relied on it was quote unquote objective really reasonable i think the court could do what the court did in this case and look at the fact that on every contested issue differences in the art level of skill i mean just on the level of skill alone here their expert opined that the level of skill for the ordinary artists in working design was three years working with lasers and optics for board game design now the jury rejected that the district court rejected that and i think that in valuing that factor in saying that there was a difference in that none of the references disclosed moving key pieces and looking at the objective in disher which the district court the jury found were there the district  agreed this court agreed the district court can do that and review the strength of the defense and i suppose in some sense you would say well they're reviewing that objective reasonable ness but i don't know if that's that that test and they look at the defense and say how close on the spectrum was the defense and it is within the district court's discretion as the court that sat and presided over a trial and then reviewed the evidence to say not close and that's what the district court  this court has talked about it in a non presidential decisions that case was it came up in the context of the prior to the amendments from one thousand nine hundred nine that provided for publication of patent applications there's no games they kept making the game they were super they got the patent they kept making the game they kept selling the game they didn't stop selling game until the court enjoying them from selling the so all of these factors the district court evaluated both after the trial in back in its opinion from two thousand and thirteen which it incorporated and discussed and footnote it in its opinion post remained after intervention too and that was a sixty three page very detailed opinion on all of these issues and then in a subsequent order i should say that referenced that one went through all of these issues again found that all of the factors except for the last factor they were in handsome and so i would submit say well if they're going to rely on it we want to take some more evidence about it and then they could have done that we were already told we could not introduce new evidence but they certainly could have acquiesced  if they were so willing and the question here is punishment of m g a which is why you have to consider all of the circumstances the question isn't whether an intervention has a right to damages and for that all the circumstances which is really due process for m g a have to be considered a change in law and that that made the strategic decision that n g a made u wrong decision in retrospect but there was no way of knowing  even without the single analysis you're still an abuse of discretion here given the timing which is indistinguishable from state industries case and state industries there was no what tourney opinion and the court still said it was an abuse of discretion district court to award treble damages and reversed that so we don't even need the single analysis but it is part of the particular circumstances of the case  the closeness of the case if the at the time the law was that we had an object to be reasonable defense that means a jury could have said that the patent is invalid and intervention gets nothing closeness or this identity of them or how those two terms relate to each other that maybe answer could be no not off the top of my head i don't know if there is  willfulness at at under the existing law at that time that only got turned around by the supreme court later on but we made the right decision under existing law to rely on the enhance damages in virtually every case that was that was something that was erased by the seagate test but is still a valid consideration and it would be contrary to the