the client that the trial to she was sought fees under section two eighty five in the court denied the motion court's ruling was an abuse of discretion because there was no comparative analysis under the octane in this case which  should have said all right here are six other cases in which he said not been granted in this case is not like them something is that what you mean by comparative analysis it was missing here is a district judge that is a very experienced district judge not on district judge but has and was very experienced district judge can't he say i know a case that stands out from the normal cases just because i've seen so many  iran i think that's a good question and i think that the supreme so first of all what i'm saying is the comparison has to be two other patent cases not necessarily two once in which there were two are more or less in the same mold as the others but this is different is that it does not have to be in two eighty five order i believe it does your honor in unfair to cited district court cases in our brief in which the district court in which he was sitting has done that and said i'm making a comparative analysis relative to other cases now i the supreme court didn't provide any guidance as to how to do that and i fully appreciate that that something that this of infringement by a toshiba product what he said with respect to that was the jury could have drawn an inference i disagree with that and have an opportunity to address that briefly secondly we said they baited and switched with respect to their summary judgment position and what he said was response to that was simply that he was presiding over the trial he didn't think there were such bad actors and so he dismissed that wind and then third line was a deliberate presentation of false royalty calculation and with respect to that when he said royalty calculations can have imperfections and and so what i'm suggesting to you is that analysis is not any sort of comparison thirty one sixteen he admits i never looked at anything but it generic intel schematic for my opinion so he gave no pinion about to ship the products that  believed laptops generally had this functionality this is a claim this is a patent claim that requires specific connections between the processor and what's referred to as a plurality of external bus devices he never gave any other means and that connection didn't have to exist in the product so the belief the inference was something that i submit was not a reasonable inference in fact based on the evidence in this case was clearly erroneous and in response to your honor question what i would say is if the judge didn't think that was exceptional there should have been an explanation for that we should understand why that's not rare uncommon are out of the ordinary with respect to patent cases and he gave your honor was on redirect i believe laptops have h d r this is a completely unsupported opinion he pointed nothing to support that opinion now he had been given information had been given documents that would have enabled him to reach that opinion but he didn't and which you can see in our brief and in the he's he was testifying to next he says and i'm an expert in the field shares my full if this is my opinion that all laptops have h p a implementation isn't that sufficient to establish that pointedly rather at thirty to sixteen of the appendix the defense expert testified with our dispute that that functionality could be provided by other means where there would be no connection that was the one that was accused in this case so you have an issue of fact what you know here are correct the record shows product was accused with the trash heap of products if i understand correctly were using the intel component well some if it's a processor so so the testimony was yes there is a processor in the laptop and it's an processor yes and but it has many many functionalities and so this is one of many functionality that may or may not be used and there was no testimony that it was used in any one of these nine hundred fifty different laptop models so so with respect to the testimony about those products mr gray testified that he agreed that the best device for this would be the kodak for example has to be connected to the chipset that was it eight thirty one thirty nine well that's the inference that judge jordan was talking about that you could just make an inference that if it worked that if there was a cio and there was no evidence by the way about any toshiba laptops or there was no evidence that any to achieve a laptop had functioning h d r you know you could guess at that but there was no evidence in the record with respect to this he testified if i want to know if it meets the elements of this claim and this is at thirty one forty i'd have to go look either at the schematic or the computer itself and i never did that it not only didn't do that was to shiva products but in fact the way this case was put together and this is also in our brief and in the appendix this was a case against the whole industry so they had a cookie cutter one size fits all strategy that says we're not going to conform our evidence to the claim language to the requirements in the claim and there was no dispute that there had to be a connection in the end because they made a claim construction a proposed claim constructions used that were connected and so the witness is on the stand he says i only looked at an intel specification this is a thirty one sixteen and thirty one eighty i never looked at the to ship it back it's so he couldn't meet the analysis he couldn't offer the opinion that he exceptional when you have an expert who never testifies about the actual accused products i think i'm into my rebuttal time so i'm going to see if we look on page five twenty one sixteen through twenty five he was asked the question ok just how it ships alone that doesn't tell you everything you need to know right and he said i don't believe there's a code right and one of the reasons that he's given for inferring there's a kodak is because he said would there be would microphone jack for example work no would not work without a  so so he has that piece now the last piece is important and this is not an emphasized i'm looking at now at five twenty two lines ten through seventeen he was asked by ok so what did you give to your damages expert did you just give him a list of a three one four three and look at lines five through thirteen he was again asked so you just gave him the ne so you said that's all the information that you were given with respect to infringement any specific product infringing actually implemented function can you clarify this i thought their point is about how he didn't sufficiently testify to support infringement so how does testimony about what he gave th damages expert there on that because the one missing link that they keep pointing to is whether there's a connection between the chip and the codec and the point here is he said if you have a chip and if that some kind of comparison is essentially inherent in the meaning of exception compared to what compared to other cases and the district court in any given case has to supply a sufficient basis for it to show that a comparative judgement has been made and that really wasn't done here i think that is one way to read it read their argument which is that there that you have to have some sufficient description or deficient sufficient argument i in this case the court was quite clear in going through each of the five arguments why the next exceptional case and going through and providing about reasons for each one of why there was not an exceptionally weak case why there was not sharp trial tactics and he explained that you know having been there that she did not see any of the problems that  way to make that point is that the substantive points that judge jordan may themselves carry inherently a comparative implication i think that's right i think also litigation absolution was that's right we look for cases in which there was a case a case that survived summary judgment went to trial survived a mall and the court then said that's exceptionally weak at the end of it we haven't found any to understand why you've jumped through a lot of hoops in order to get to that final place now obviously it's a clear lost at the end there for the jury but that doesn't make it by surviving all the steps it's suggested that we somehow if snickered that one of the district court judges into thinking that we had evidence that we didn't have namely that we were saying you know here's going to be evidence about how to video monitors are attached to a computer but if we go back to what the summary judgment actually sent we will see something different if i can direct you to a two five zero eight and it will be about midway through the assertion that toshiba sells separate components i took their argument to be that you made that assertion they forgot to oppose it but you really had absolutely no basis for making the a and i'm not sure what to do with that scenario but is that a description of i'd what i do know your honor is that this was there was discussion about this very issue during the summer judgement argument theory so the the the point the point your honor though is that the there was nothing strange about the fact that you have to narrow your theories before trial even if you wish you had better evidence or either the district of delaware or the third circuit have a rule that i know exists elsewhere like the second circuit or somewhere in this maybe the northern district of illinois that says  honor at least the third circuit if the court has no for the question thank you so first of all i would like to draw the court's attention back to those pages in the record we get beginning at thirty one sixty and the notion that mr great somehow had provided evidence with respect to ship of products if you look at thirty one sixteen page for fifteen starting at line eleven this is actually in the direct examination of the technical expert not cross mr grig your opinion on how h d already a works  starches analysis it's all based upon the generic intel specifications not based upon any information relating to toshiba if you then pass over to page thirty one forty one page five six n this is cross examination line eighteen question and you have given no testimony today you have given no testimony about there today with respect to any two ship or product have you answer no not today no and i should say the question before he said i need to see some specifications some technical information before i could reach an opinion with respect to infringement and then again over on page five nineteen referring to  laptops line seventeen question but you're not giving any evidence about any laptop that has those codecs are your answer i have not presented evidence here today that would indicate that question so the presence of the chipset by itself does not establish infringement right answer not by itself no now with respect to the big switch i'd like to turn to that from and if i may first of all and it implements each d n a then i can infer infringement and there is no evidence of any laptop implementing h t audio except for his testimony that all laptops implemented h d processor to a plurality of external bus devices but that belief does not demonstrate any compliance with that claim requirement  with respect to the bait and switch if i may turn to that for the moment the didn't ask or to look at twenty twenty four ninety seven this is it the summary judgment hearing they have been making capability argument all along that's part of how they put together where i am i have called a sort of cookie cutter approach really never looked at any product they just said look intel says if you did these things then you would have a connection but there's no evidence components of the system that have put together would infringe this patent and he says we have plenty of evidence to sustain system sales well in fact they had no evidence to sustain system sales and given given that time i'm just going to draw your attention in particular to thirty one sixty three which is the testimony of their damages expert and which he said he calculated the of the intel chipset is that right answer that is correct question not on the price of the laptop it's or i did not so they had no evidence in their damages analysis that would be like the smallest saleable intrin actually is and we did concede that argument when the judge asked us to ship a sells monitors there was no other concession to us and questions about you know statement facts and all that there was no proceeding like that that happened respect to this motion at least so so the situation is they said ok we're not making capability art we you've misunderstood us but if you look in the record here you'll see that's exactly what they were they said we're we will stand in recess for a few months