resume even the key expert testimony here is marked as confidential and there doesn't seem to be any basis for marking that based on the usual standards for confidentiality so rather than take your time with this i  legal argument and including the key expert testimony which we're going to be discussing this morning and i don't understand the basis for that and this is the basic infringement there which is relevant to the attorney and testified that in fact in a multiple processor divide it essentially what the experts say the court selectively quote the expert but the expert system is based on the question with whom you buy computers whether it's construction addresses this particular issue that it didn't address that particular issue that's in part in fact part of our point your honor by apps argument was really quite simple the question that was left open at claims construction you had two different kinds of of potential devices here a single processor device which access multiple condition code registers that's what claim one of the six to eight patent covers and absolutely validly reads on a single processor but other claims in the six to eight patent rad on multiple processor devices what the court said it claims construction was in the of event of a multiple processor device the processors all had to share the condition program destroyers that's all it set because of the language in those other claims require them because other language in the other claims require that the question that was left open here was when you have a set up single processor devices each with its own condition code registers each of which you meet the stipulated definition of computer which is the language of claim one of the patent when do you no longer have a collection of single processor devices each of which is separately accused of all as violating point one and and since that trip had multiple processors that you now didn't meet the claim limitation for as we call it shared by all the i'm going to say what he was doing there was saying that the testimony actually was you know as i understand is his ruling was the reason that this is objective the systems used with your own expert admitted that there was no influence that's correct in the expert did not so admit that's the point question i'm not going to contest that to let the district courts tell me why the exceptional case findings could not rest on termination that this claim construction that you asserted your expert asserted basically from the beginning about the single processor being satisfying even if there were other that i think you would have to read into the district court's mind that in fact it found that particular argument to be objectively baseless but the court gives you absolutely no reasoning as to how it made the leap some of ok so let me know the underlying is in fact a single processor device with multiple condition called registers id that is claim one reads on each chip it seems to me fairly obvious that you could accuse unless the whole point in some sense of the past was that when you have a device in which different processes are working together they all have to share these conditions  i agree your honor if in fact you could find that to be on to be the conclusion but big but you don't have anything from the district court that tells you so one would assume given that gap if the argument were objectively baseless or even objectively weak the defendants would fill that gap be in for you in other words they would show that hey look at this language in the patent it clearly makes by x s argument on this point ridiculous let me walk through the arguments that they make no no i don't agree that they don't they don't do that that only i think that's pretty clear about that but where is the invention yes i'm sort wh invention from and where is the the in the advance over prior art found in the patent if if you're talking about the side by side individual processors that are in fact working together but not sharing your visit your honor of a six to a patent really covered to the innovations and the first was embodied essentially in claim one it's sometimes called parallel processing it's the ability of a single processor to simultaneously access multiple condition code registers in fact the defendants argued that this prior art and the district court and in fact they did so specifically referring back to the  one properly read on a single processor device you can square that with an idea of that claim one is somehow barred by pre rock that's there's no finding in the record on that point and the multiple processor devices actually cover a different concept which is called simultaneously multithreading which is the ability of multiple processors to share all of the condition code registers and whatever of the accused computer as a basis for reverse and his determination of objective in this well i simply phrase the argument differently i think the result of the court essentially reach by determining that the only possible that claim one just require to read an entire chit of a century has the effect of importing into claim one not sharing a language of claim to claim once or actually reads on a single processor device there is no sharing there's nothing to share all condition code by definition virtually all condition code registers under that pattern have to be accessible by that single processor in the device that's what the district recognized that is fundamentally different than the defendants who wanted a centrally to have claim one have a sharing requirement they argue that what the martin stage that the definition of condition code register sho sharing acquirement into that definition and the court rejected back the court said no i'm not going to put it in there the language of the claims takes care of it that actually introduced a certain amount of confusion into this case because playing one doesn't have in fact these were these shaders were all individually accused of all devices and nobody tells you why it's unreasonable i think the courts already sent the defendants don't appear to filling the gap at all and certainly the district court given the fact that both partners have not requested re man on this to go back under the new upping standard i think this court is capable of essentially determining that in fact biased his arguments are not exceptionally weak what arguments are going to be made to that hasn't get to the district court that hasn't been made to you the defendants have all the opportunity in the entire record to point to something that slams the door on by actually stardom and they fail which tells you that bias argument w claim specific it does not talk about any particular claim so if there's any ambiguity the claim construction and that was the clarification ruling is definitely not a claim specific and it's issued in a certain context and the context is yes are you there i mean that isn't that credibly common you would accuse me of i phones because it contained some infringing component you would still write your complaints to say this is the accused device of the fact that infringement locals talk about a second person i read the testimony several times i don't see that it can here in the constructions of history for agency it doesn't say that there is no infringement if you stop after the clarification or if it's a clarification or is not a claim specific and it's done in a in a context in which people are talking about not the entire device and to stick to the conversation to understand the context the judge had a mark when hearing it all day marked with parents he knew the party disputed seventeen terms they were detailed audiovisual tutorials nothing about a single processor isolated process a theory comes up why doesn't it come up it's because they only raise the individual shooter or if you can show me where he said that i'd be happy to look at it but that's not the way i read what he said but why would he say that if nobody was making that argument he didn't say that no they were not pushing they didn't make that say so this is his ruling about the individual shader argument rests does it not on his reading of the expert testimony he'd said you know i don't believe they're going to do it and then they turn around and that's exactly what they did and your point it was nothing of you didn't he was addressing the individual shader arguments you yourself say was raised until later one of the individual shater ar not every background principle is articulated your honor and here the party is because of the complaint because of the original infringement contentions what nobody was thinking about this one because of the patent which is a multiprocessor plan the conversation at the mark when it was all about the he's new and i took it that that was actually the argument in the first appeal on the second argument page forty to forty four their brief they didn't use the language computer but so what they it's perfectly clear that they were saying the same thing but the substance is the point is that for sure and that's what we've said to you but how can each individual processor and if the individual processor has access to or separate it and this court knows board matter and to the extent they were trying to get any mileage out of rephrasing it under different terms i we didn't put it in in waiver terms no but what we sat is what the district court agreed with that is not consistent with the court's going to charge and i think that would preserve any possible complain your honor your honor so the court doesn't lose sight of it the expert's report is in the record and you can see the argument that in fact the expert used that is adumbrated in this in part because if it's september twenty first that's a week before the clarification or so i'm trying to understand was that were those infringement contentions known to the district court at the time of the clarification  i'm sorry i can't answer the question because i actually don't know if we had certain i follow drugs for that i will point out your model though it would be highly unusual to the martin stage for the court to address a specific infringement allegation and in light of the product or  the trip or anything like that obviously that wouldn't be proper since markman is done claims construction is done in the abstract just looking at the patent itself and anything that in fact was relevant to that i would assume the defendants would bring to the court's attention honor at best the argument was over the question of whether a claim one would read on a single processor of the bison the and they usually was raised by the defendants on the basis that the court should construe that definition of a condition code register to include a sharing requirement in that definition and what the district court said was no i'm not going to do that because player one clearly would read on a single process for beis in which case you only have one processor and there is no sharing so i'm not going to put that in the definition of the language of the claims took care of it is what the district court should you have one move  are only point out that certainly nobody that the district court never ever rested any portion of its opinion on the idea that it was improper to refine the theory of infringement here to accuse the individual traitors as opposed to the entire chip your honor i think this court you slept with a gun and firm conviction that a mistake was made and that the district court exercice  fear based on an error of law or a clearly as erroneous fact finding namely as misreading of the expert witness report and therefore should be reversed on s under the protective order i think if anything that would emphasize the fact that dorsey is one who truly had culpability but let me just take a moment to address the question that the court asked previously about we're the district court had addressed this single  processor element does not change the fact that any particular process or elements in the accused chest is incapable of accessing all condition code registers and so on so this is where the district court  further found that just prolong the litigation in bad faith these findings to the extent of held by this court necessarily apply the bias of counsel at dorsey and whitney dorsey and the one who participated in construction they were present at the expert when he made the nation in question and dorsey filed and signed the summary judgment opposition brief which is the subject of the day supports the order now it's true that bias had supervisory responsibility for dorsey and that's why the section two eighty five award is appropriate but the fact remains that dorsey is the one who actually did the misconduct found by the district court one hundred ten circuit precedent the specific sanctions and nine hundred twenty seven once he found that the arguments for riis that's correct your honor and i think that turns on a large degree the reasoning stated by the district court if we look at the reasons given by the  didn't the reason given by the district court is that that was an advocacy was not exceeded in this case and our view was that there is simply no such thing as valid advocacy from how expand the always compel a nine hundred twenty seven for i live in the attorneys knew and had the same knowledge or in this case more knowledge than them so under the tenth circuit law your honor i would agree that that would generally be the case now given the recent standards were twenty five i think it's fair and my understanding is lower so under the under the current standards section twenty five there may be something that are unreasonable and not for it to eighty five  we're somehow misled by the client i'm not suggesting that that would be appropriate in any given case and certainly that wasn't found in this case but in general i believe the answer to the prostin of yes if we have specific factual findings it litigation position was unreasonable that problem rather more with counsel than it does with the clients that's our view and in particular the reasoning of the district court that the concept of a valid advocacy the point that it's been the subject of discussion so far that i be a plea to the extent that what by accent as lawyers did below was reasonable and therefore not up an appropriate basis for the council to do without getting personally so check to a few the starting point of course your honor is the language of the statute and the language of the fat shoots moves well beyond a phrase li reasonable those who so multiplied the proceedings in any case unreasonably that partisan government and vexatiously and it would be a really bad or as as a practical matter i think that's right dealing with a claim construction issue that is revisited later on but it would constantly deal with interlocutors or decisions by the judge that maybe are challenges that are questioned that are revisited later in  case that's a very common situation that is nothing like any one nine hundred twenty seven case that depends circuit has permitted and what are those cases the words that come repeatedly in those cases are in effect lawyers who lied to the court in one case a lawyer who repeated we filed baseless case they are extreme cases and your rights your honor to put a precise definition on it is not that easy but this court held even before the changes reflected in octane fitness and high marks that there was a hierarchy from two eighty were to hold that to eighty five these were not justified then the discretion that the judge exercised in applying ten circuit law as a one hundred twenty seven should also be a front a let's assume hypothetically that this co decide based upon the arguments of vioxx that there wasn't a basis for twenty five awards that had been shown but that as your honor raised maybe that's a question that is returned to the district court argue with that it needs to be returned to the district court but let's assume for the moment that issue is even in that event the nine hundred twenty seven issue does not have to be returned to the district court for the reasons i've just art higher standard and because in that case the court was dealing with tenth circuit law that it's obviously familiar with that to apply a higher standard and that issue need not be revisited by district court the only other point that i am inclined to touch upon and was just barely touched upon in the other argument if it's protective order issue and the notion that perhaps the lawyers were in a better position than the client to assess what's reasonable or not reasonable and the policy point i would make with respect to that is if god forbid there were debates between client and lawyer ultimately about who was at fault for a fe obviously the lawyers would point to communications between lawyer and client perhaps the client would do so as well but for a third party to in effect force the waiver of the privilege that that kind of examination of communication would require is an inappropriate fall out from being able to rely on a protective order to add to the pool of parties that might be responsible for a fee or and so the narrow point that i want to make is that is a policy result that flows from the defendant's argument that is not a good one i see that my time is up and subject to further questions but if nothing else to very briefly respond your honor to the argument that was raised that section nine hundred twenty seven somehow implies a higher threshold that really bad arguments are required so first we disagree with that altogether we think the seven ruling be reversed and i just want to note to the extent that there is a me mansour district or you would ask that there be guidance given regarding the proper standard for nine hundred twenty seven in particular with this