afternoon our first case this morning as many innovation versus anthony mr nelson good afternoon your honor to be in court on the issue in this matter is whether the district court chooses not to board paternity fees it has to give reasons why otherwise it's an abuse of discretion and the reasons the district court gave after seagate with the standard going up considerably do you think a close call still warrants an opinion well if it is always a good idea from the outset of course yes no but i'm suggesting that maybe some of that prior case law might be reconsider our position on the defensive not having been counted but we raise the standard to objective recklessness now are you going to make an argument that there's some recklessness here well i'm really the question remains is willfulness still in the equation willfulness would be in the in the equation in this case because the defendants unfortunately we don't have this in the record so i don't know  useful this is going to be that when the defendants were asked about how they came up with their designs they gave a million different answers and none of them they walked home hedged until they got to the point where they said it was possible he saw them send the plane and clear that the trial judge was that of his mind when he denied you attorneys fees he gave you cost didn't yes he did give us cost when i say that the district judge was out of his mind  the statute that's a neg because of course the it is under both the copyright and the patent claims here the word of attorneys fees is discretionary and based on the record that we have before us what the district judge said let's talk about the patent side of it first the his reasons for not working attorney's fees this was primarily a copyright case is what he said i don't think that's relevant there's two different standards for awarded attorneys fees one for copyright one for for a patent forty percent of the damages our client recovered in this case was a result of the patent claim so the say that it's primarily appellate reasons were not terribly persuasive words i don't think his reasons  are not terribly persuasive he probably dealt with it fairly some really but we don't grade his opinion as a law school exam do we are we more interested in try to find out whether the our position is absolutely he did his reasons for not awarding attorneys fees on the can claim that it's too much trouble to apportion these are not mean it's not even so much a law school position as you said the district court in a sense  are attorneys fees position he never really got to submit our turns because motion mr nielsen could i'm switching to the other side of the equation which poses a rather interesting legal question which are there's a three counts you win three counts you lose on the copyright side did you prevail yes the standard for what about the circuits who say no second seven the second se circuit not ours they at the suggest that you don't prevail under those circumstances i understand we're in the ninth and there's probably no binding precedent here but what would you argue to a son with or you prevail i would argue that we did because the supreme court has set forth the standard for what the prevailing party is in the whole broad range of the federal speech of the statute of which is happening right act seventeen u s c five five is one of them and the standard our point of view is moving party on the motion for attorney fees the interest and nivea yes even on the copyright because we did prevail on at least some of the we did she some of the benefits that we sought in really the litigation the defendants were subject to an injunction for an entire line of bedroom furniture and they had to pay damages there was clearly judicially sanction change that i assume you thought would have you know an injunction for a different line of furniture i don't remember the name of it but i do remember you had a whole nother line o here there were three other copyright that you didn't successfully prove infringement of you would have liked to have had an injunction there so the defendant successfully prevented you from getting an injunction in exactly three copyright cases successfully prevented you from damages and these are statutory damages not profit so it had been lost profits where you were able to show that a three lease one with a three really significant actions where all of our damages were contained as opposed to the three we lost which are much less than if again here they were exactly equal because you were pursuing statutory damages the why isn't this a wash i would love to see the district court get better and more detailed description of why who came up with this notion this notion that three and three equals three months or equals zero but i don't think that there's anything wrong with  well i think the mathematical approach has actually been rejected that sort of being counting three versus three and places almost over restricts the supreme court's test for a prevailing fahri it's been rejected in cases where there was some difference between the types of claims like if you bring one patent claim and one copyright claim and you win the patent claim and you lose copyright one minus one does not necessarily will zero because there may have been significant differences between the two a lot more time and money was spent on one of the claims the trial versus the other a lot more in damages were taken one versus the other and that's the reason as far as i can tell the circuit courts that have rejected the mathematical simplicity approach but that's not the case here because all these claims are copyright and they're all equal because you're pursuing statutory damages so i'm having trouble see how there's a difference while the when the statutory damages are awarded one of the things that goes into that inquiry and we don't have a jury instructions in front of us but i imagine you're in there is is how much the defendants may have made or may have saved by hockey and as one of the items the jury can  than i think in this case we would also prevail but going back to the supreme court test as to which party is the prevailing party and whether there was a judicially sanctioned change in the relationship of parties there was there was an accounting and i ask you another question even if we ultimately conclude you're right that the district court gave short shrift based this simply on math three hundred three and zero and that wasn't appropriate then he also in addition separately exercised his discretion not to award season this case he says that clearly in several different cases several different instances one in the copyright question itself and the second time in the patent discussion which where i agree it probably should be there but nonetheless he's really stressed that these exercises discretion not to award season the is also set for these poverty factors for forty percent of the that are used to inform the discretion of the district court and the district or no where evidence any analysis of any of those factors and those are the factors that this report needs to use the objective hundred reason why this i mean we've taken issue with a number of defenses that there's nothing that says he's got to address every one of the five factor he clearly laid down his belief of the closeness of the case with his three to three statement even if that's not accurate for prevailing party purposes why can't we take that into account for the discretionary nature well again he didn't apply it right standard and that's an abuse of discretion not applying the correct needle standard is an abuse of discretion he didn't go through this  factors he did give us a chance he didn't consider what we submitted we submitted volumes of evidence in our motion for attorneys fees on those over the factors and none of it was considered he didn't consider the squabbling between the parties during the cases most of it didn't wind up in front of the  evidence you have for lack of consideration it's just the opinion right you don't know that the judge didn't consider it to just fair enough it's not written down by the court ok i'd like to say thank you and i will let you save the rest your time  he was saying so i hope he doesn't ever read the transcript and you don't quote it back to him that come after you for that one but i couldn't figure out what it was we talked about a knock off i didn't know what he was saying so while look i may based on the fact said oh this is a closed case he did say that with regard to the design patent thing and he is saying suppose that's how i should interpret the third factor with this knock off comment really so and he's but what is he saying it's a close case for whether or not the design patents infringed or it's a close case because you didn't win copyright or they didn't they didn't win copyright you know that you lost design pattern i'm what is the thing is the court case the whole overall thing  put to use the wrong legal standard for analyzing the design patent so it's not the case and we told him that so it's not the case that he said oh this is so close i think summary judgment is actually appropriate because there's no evidence he actually used the wrong legal standard back and have him take another look in light of seagate obviously didn't apply the law of seagate and if there is anything on the record that would indicate objective recklessness he may wish to reconsider that the overwhelming impression from the judge's opinion is that three minus three zero in the bean counting approach which has been rejected pretty soundly circuit by circuit of infringement in my opinion it was two there was a much closer case there really were legitimate defenses and the person who pushed for legitimate defenses has a right this is not an exceptional case and i just think that  discretion if we were to determine that the three grounds that he based his decision on none of them are legitimate it seems like you're asking us to reach into the record and recognize some fact findings he could have made that would have supported him  weeks we review judgments and the record supports his decision i think this court as you know he didn't make a fact finding i agree i would agree with you if there were a lot of factual findings by him with regard to the factors like and read before tech that we said work to be considered in the context of deciding whether to award and if there were a lot of findings he just didn't mention them here but i don't see the findings anywhere where is there a finding how do i get to the concept that this w you coming back to i think he made a decision based on close case you think that we should infer from his discussion the copyright wasn't found that it therefore close the case on the design patent infringement as a matter of law he applied the test run because he looked only at the pictures of the pope and didn't look at the picture of the whole bed which is what the design pattern claims that we told him as a matter of law he looked at the wrong thing which worked with regard to claim the design pattern so that the fact that the sound summary just before doesn't do it and i got to tell you i mean i couldn't figure out what was different between these two it took me a long time and you know personally not that i'm supposed to make that determination  recognize i'm not but you want me to reach into his mind and assume that he made it when i don't necessarily see anything that says he did when gosh contrary to my own intuition with regard to these two pictures not that i would ever use  of a why are we here question i mean and i'm saying this in part that i hope your client hears it you're kind of going to spend a lot of money if we reverse this and send it back only for the district court and i have very little doubt to actually articulate better reasons more detail what the district court clearly intuitively feels and so even if you know we sent it back on a technicality that he didn't articulate or she and i don't remember which with sufficient particulary see the reasons if we were to find that i mean is it really do you really think that in the best interest you have any chance of winning below based on your interaction with this judge that's a good question and the one appropriately well i think that is fair consideration here is that looking at those factors the defendants raised a number i don't believe the defendant's defenses were meritorious at all with respect to the copyright the ownership that there was no issue as to sit on his copyrights the copyrights were amended because the because it it it had listed the author how long did this trial go on it was sixty days  paper so the district court really didn't have that great of a flavor for the case as far as the issues that were going on we point to all this in in our brief with regard to discovery problems and whatnot but of it seems to me that the defenses were raised just we were brought out to drag the case out to expand the scope of discovery so that the defense can continue to sell this knockoff product for a longer period of time continue to profit district judge has taken sort of a subjective approach with this he's been reversed several times by this court in cases between these parties we may suggest it should be reassigned to a different judge if it's remanded and i think the grounds warranted the records very small so it would be a substantial burden i just want