answered the the court approved shifting the invalidity dispute to the patent office by staying the case and it wasn't just a stay it was multiple r nominations over five and a half year period that ultimately resulted in the cancellation all claims where the court four times either did not you know rejected mossberg attempt to lift the stay or not not  souness i'm aware of a number of cases where there is he already answered my question i can tell already are you aware of any cases at least in this circuit or in the other circuit whether we're a  i think that would penalize however quickly moving to stay the case to take advantage of what the cool case indicates that the efficiency and cost effective to the smaller the defendant voluntarily agreed to take corrective action that you could get a tourney fees are prevailing party the supreme court got rid of that that means in an efficiency standpoint it's discouraging people from  the whole policy argument here to me makes no difference the question is whether a rule forty one dismissal and particularly the one here which is because you didn't answer they were entitled to do you know laterally can ever and has ever been valid as a savage failing party status and i just don't see how we could ever do that well there in a couple of responses number one back to the issue of the unfairness there is a lot of work and expense that would go on a policy that the product the accused product is covered it wouldn't satisfy the trombley standard so all of these fees relating to answering the complaint and motions that would be needed to be filed and quote be would be forced upon a defendant so analyzing rather than encouraging going to the patent office quickly and finding a stake why is it paralyzing what it's done because of the early stages you had to do very minimal work in this litigation you filed a bunch of motions for states which the court granted and so i mean i'm a little confused what even kind of fees you're asking for here i mean how much can it really be to to file a bunch of motions for states here and why we're even here on appeal there and then i think that is not it decided question that's a very controversial question ok and one that would be an issue for another day if we got past the issue but if you actually were prevailing party instead of subject to a voluntary  right i also think then you're trying to again you're trying to argue policy reasons but the supreme court precedent seems to make it very clear that there has to be some kind of judicial improve at or on the change in relationship between the parties the rule pretty one isn't it i mean i don't you know you can argue that all you want but i don't see how a voluntary dismissal by the other side it's ever the judicial and premature move just record doesn't have meters discretion there so the only orders here are state orders but how are they some kind of change in relationship between the parties as to the ultimate outcome as opposed d to the procedural aspects of this case i understand the concern the issue is really in a in a nutshell this district court said we're going to shift the issue and the order of stand a is judicial approval  vacated the voluntary dismissal and said this case is is is moot because there is no jurisdiction d it did that happened before if you'd asked them to do that and we had gotten that we might have had a different question for it for appeal although the answer at least in my view would have that that would have been a proper because under well what do you want a court answer is they are entitled unilaterally to dismiss their violation where the substance overcomes the procedure and that's really where the be technologies and this really eerie decision from this word as well c s c r s pieces look at the commonsense result here absolutely we help but even if it was just those cases do not help you in the way they think you think they help you because those cases involve an actual court order changing the relationship with the parties they may not need decisions on the merits of the litigation there is not the be technologies case does say that the victory was won at the patent office even though it was one of the patent office the result is that there are really party and that wasn't but that was actually the if there is an order from the corps that changes the relationship with the parties and there are all those cases you're citing to there always is an ultimate order d from the court is there not  every every case that there is a radio there is a near had a decision from a court or apart from and he would be improper order here or extraneous or how are you going to describe it there is not an ultimate order from the court disposing of this case there is the all you're allowed to voluntary dismissal order yeah i think you have to concede that that order is completely d extraneous rule forty one is self executing when an answer has been filed i don't put that one aside that's not going to help you i  that you can't say that the court didn't by doing that approve what was done at the patent office after stating the case and retaining you but this happens all the time in attorney fees cases in the in the big protests cases where where a protester comes in and complains about government misconduct and the government says yeah you're right you got us we'll take this back and the court dismisses the case there is an even an order in those cases dismissing the case but they still don't get attorney fees because the court order is not a change in relationship between the parties isn't that the same thing here and i guess i don't see it i think this case is it is one where i mean wouldn't it be just in pure conflict with supreme court precedent to say that a case with how a judicial order changed between the parties is still sufficient to establish prevailing party size i think we'd get flipped ninety in a matter of months on that case where before the court innards dismissal order it found the prevailing party because all the claims in the patent were cancelled provides the implicit authority not circuit authority that that the decision stay in the case was agreed to so that wasn't at issue at all they agree there was an exceptional case it never came into question i would also like to st raise are you aware of any cases where a voluntary dismiss make it different i don't think it should your honor it was it was still open which to argue with you may not have been moot at that point since we could have still appealed at the point that we decided to dismiss so i suppose if we're not having an argument exact same point if the appeal window closed and then they filed a motion the now be what we just discussed and that's the technology case so i don't know if the timing with regard to the appeal period not having it run really makes too much of a difference on the facts we're discussing here i mean if you file voluntary dismissal and then try to appeal from the voluntary dismissal you're going to have all kinds of other problems and corrector i mean there at that point there's no real point in appealing i mean we could bring the case again but then recourse are risking fees under forty one d so i don't know that we would want to do that well maybe you misunderstood me like a minute if you follow the ball into a dismissal after the window has closed no i don't think had actually a jury trial multiple weeks so they were distinguishable cases which is what the district court found as well and of course if this court i'm guessing does want to still hear the argument and does not think it's been  remains to a defendant agency with instructions by the court so it's definitely different than a stay order just giving you a stage that you can go over to an alternative body to deal with the  want to mention that it was not the case was not stayed right away it was actually six months in when the case was stated so they had they had an opportunity to answer or file a motion for summary judgment if they wanted to they elected to go to the p t o instead which is of the order in that the because the court played no role in the agency granting of the plaintiff application the plaintiff was not a prevailing party so that was the one case that they had mentioned that was actually on point at the district court level and did not come out the way they are  interested in saying it did the thomas v buckner case that the court refused to give an advisory opinion and then denied the motion for fees and i believe those are the five district court cases in their reply brief that they mentioned as effective upon filing under both the authority of the circuit and under the nd circuit to mention the nd part of this because i do think it is important to mention the district court also fitness standard correctly and applied it quite well and i did want to make sure to mention that the court looked at every everything that to me brought up before it  and see if this was something that made the case stand out from all other cases as it was commanded to do under acting and nothing that to me pointed out you seem to give the court much concern they attempted to   they talked about the settlement demand i do think that's important to mention that wasn't evident during which should be reviewed with extreme deference and he way but the decision by the court was that the settlement language was not probative which actually makes sense because so many had mentioned both that it was a one million dollars settlement demand and that it was similar to when you try to extract small settlements from counsel so the district court seemed concerned about these two very different arguments coming at once and so decided not to give much credence either which was appropriate and certainly not an abuse of discretion in terms of the weakness of the pattern itself there was quite a bit of discussion about suggestion if we didn't ask him anything about it exceptional circumstances and we're not asking you anything about it we're fine with what your briefs i appreciate that your honor i just didn't want you to have a question after their run after the indicated they were not going to appeal it that makes moot and that makes this case distinguishable from b technology only because the procedural dismissal by the district court can move this i again i don't think that the the the th