the arguments you make in your in the earth below break which disturbs me is that you say in some nine months after stating in open court this was not an exceptional case the judge went ahead and found it was an exceptional case and  cite to the joint appendix during the pretrial conference in which the judge said i've got a few observations and then said things judges say when they're trying to muscle parties  to settle or whatever and i said i don't see how this could be an exceptional case though in terms of attorneys fees on the other side so those probably won't happen i haven't heard all the facts but just looking what i've seen so far i don't see how those things could happen now how the heck does that represent anything other than a district court judge thinking out loud  i don't believe that i believe the testimony of the record was that it was not tied to any particular event there were other demand letters that went out to other parties for four different time periods for different time periods they were concerned that this particular declaratory judgment action i think their concerns were as it turned out well founded because there was a motion to transfer or more importantly there was a retaliatory action brought very shortly after this action started which went on for some eleven months after nine what the sole inventor of this company is a former united states marine captain he came up with this invention he's not only has the patents that research in this lawsuit it's reet subsequently issued patents that have been granted by the patent office more recently well i think in considering the totality of the circumstances this is not it and there are some some facts like that which could raise an eyebrow and i think but as i have to look at who the plaintiff is this is not a plaintiff was engaged in any prior  coincidence whether this was calculated and we don't believe it was calculated we believe that this was an honest company an honest man and what a lawsuit by the way hired a top law firm who relied on that offer because he had no experience with he relied on his counsel throughout the proceeding so what do you want us to do we've got a very deferential standard of review here and so you're giving us once now that you're saying well this should have been interpreted more this way than this way the references to litigation misconduct and not to this outside activity and there's probably a very good reason for that because if you start opening up i mean these attorney of these cases have become extreme and some instances where there's more resources put into that the necessarily the merits case so where does that leave us i mean do you acknowledge at least that you're asking us to look at a factor that is not one that's referenced in the cases where the worst required to follow well not exactly i do think you cross a lot from that went when a party in litigation rights council on the other side directly by its websites in their name gives up their personal phone numbers gives out their personal email addresses and then writes them and says i will give you a graceful exit from the litigation if you stop this otherwise i'm going to escalate this and even do worse that that's on the record i think when you do that that is the factors with respect to the plaintiff such as whether or not this was timed calculated and other factors dealing with the plaintiff's behavior for example i thought it extraordinary that the judge  fight that is one of the thirteen lines of reasons to award attorney fees and yet at the same time to ignore the conduct well well a lot of the different you've got a district court judge who's reviewing these facts old defendant president of this andy who's a puppy and and who gets this letter and reaction and mister going to mature fashion and that district court chose to just treat it like it was it's a puppy and and this puppy is being swatted across the nose by a mature business person who should have known better i mean that that's one way of looking at it you're also in this case this is a case and that's why i'm asking the court to look at the totality when we consider whether or not this was an abuse of discretion this is a case where summary judgment on the precise issues that are before this court the precise issues of whether this presume that that was made to the just a court of law that argument was made to describe right that attorney fees are appropriate for considering other parties conduct now that the district court then didn't specifically address i n his opinion does that mean that he didn't consider it off because we as an appellate court affirm judgments not opinions right yes although we've cited the cases in our brief the more reasoned that decision is  a comment the reasoning and analysis that the district judge gives the better that the quadrille circuit judges have to decide whether there's an abuse of discretion i agree with what you said what the thirteen lines with conclusion there's one sentence which says a single party could not have performed steps even though steps here that were at the issue provided storing displaying in transmitting none of those were construed none of those were was the district court asked to construe they were basically given their plain ordinary meaning and three sixty's motion for summary judgment has stated quote by following the link provided by the admin the software and dad is downloaded and stored on the invitees phone automatically and  the district court denied the summary judgment motion my life through sixty because of that statement it is is own expert admitted later that any invited user is i'm quoting him free to decline or ignore the invitation and that quote by accepting the invitation i have so have to do some things like agree to terms of service and so forth so the prior statement simply wasn't proved or you want it in the record on summary judgment the judge specifically refers to expert report to testimony of the deposition of two of life three sixty's witnesses and to e mails of like three sixty years which may clear one that the judge understood the judge cited to this e mail evidence that the judge understood that when an invitation is set there still had to be active steps taken to download and install the software and i think at the time of the summary judgment the district judge understood not perhaps five young of the case the judge wasn't that thrilled with the strength of the evidence that came in but at the time of summary judgment this issue was on the table this issue was before him he cited to the extensive record he even pointed out and example where it's not a so yes i agree with what i understand afic ations of what you're saying kind of this a more global policy thing my recollection is that we've actually had attorneys fees cases where the reverse happened where the case went down on a motion to dismiss on a summary judgment motion cetera so now you're kind of asking for the reverse didn't this district court judge do exactly what plaintiffs would want a district court to do which is to bend over backwards if there really is some question some doubt in his mind made upon representations by the plaintiffs that he would go for it and allow a jury trial and allow the evidence to go forward and under your rule if it just a court would be compelled to feel compelled that he's here she is always going to have to err on the side of going the other way because otherwise they're going to lose their discretion to do what they think is right in terms of attorney space well and we we do your honesty more and more cases where the plaintiff would rather have summary judgment granted that gets them to be able to stipulate to a judgment that argument i think it also must have considered the other argument of unclean hands and so it's hard for me to sit here and have you say that the court didn't consider it when in fact it's addressed in its opinion or the argument was raised to the court do use of discretion but there's not a word about the about the defendant's conduct in that and while it's true that point was made in the submission to oppose the attorney for ward i do think it was an important enough factor i don't think dismissing the conduct of the guess i don't take the position i do think it's a factor i think this quarter have the opportunity to read a well reasoned decision which addressed what the judge didn't do when that summary judgment decision he made a statement that one person can offer for more steps left but then he did not address any of the reasons or issues why isn't providing the software to the cell phone by invitation why isn't that sufficient in light of the fact that there was no claim construction on who are providing that the expert for the plane so called expanded litigation misconduct why isn't that at least relevant to the inquiry i mean this is stuff that nobody's denying this is part parcel all of this happened only and exclusively in the context of conduct by the parties in the litigation i think if we do open the door to kind of the parties have engage in it goes well beyond what takes place in the you know in the courtroom or related to what's happening in the courtroom is something that simply isn't part of what i paid for i related to any action that was required by like three sixty or by ages to take with respect to the the case as it was proceeding this was simply like three sixty reacting very strongly to a case that it felt was abusive bullying the district court here another district courts have relied on the notion the the motivation for bringing this suit which is to just extract settlement litigation costs right i mean that's a factor that's considered well that's all stuff that's outside of what's going on in the courtroom too so how is that probative of the attorney's fees criteria and not the stuff on the other side well i think in terms of because a director lives to why the claim is being brought against the defendant so if the motivation for why this claim is being pursued is not for purposes of resolving legitimate infringement pursuit but appears designed to force the defendant to abandon its very defenses and simply put i think that what about if a defendant i understand not your case but what about if a defendant outside of the litigation process the sends letters out to customers or to competitors and says we know we're infringing but this guy never deserved his patent because he's undeserving of a patent except so there's this outside communication that's used with other people on the outside with that be appropriate to use in the context of litigation misconduct well i court has the right attitude of about it that it's just trash talking at some point it's one thing if you're of pursuing the claim in court for a particular reason namely to subdue a client despite baseless claims that you're asserting that's another thing too outside of the judicial context to express yourself express your views about the case to complain about well it may cross us it may cross other lines interference with potential advantage and so on make constitute a tort certainly are and if that and i think that's right there are other rights and remedies at play if there was something like three sixty that crossed other lines but here in terms of an exceptional case determination we're looking at the case where this is the exceptional case what's happening within the case and i think with a three six he did with respect to commenting very loudly and very publicly about what it felt was an injustice is something that makes the case itself exceptional did have an exceptionally short timeframe one that was not imposed on the much much larger companies at play you know this was a young start of it just on the verge of sort of making it and at the same time we have a just complaining of what it deemed irreparable harm from the outset a lawsuit that was never substantiated in the district court's view there are no customers that overlap there was no intent to seek the same customers and possibly have  some sort of competitive relationship with the respective products until that is these majors this product that had been supposedly in the works for a full decade magically gets launched the day before trial the sort of fabricate an appearance of competition and it's not workable as i recall the record well it wasn't it was it was said to have been available for download that turned out not to be true either trial that came out on cross examination so all of these things together that this record was well within discretion to make the judgment call that you know hey this doesn't really seem like you know on top of the weakness of the claims themselves this doesn't seem like a just trying to press an infringement dispute because of this alleged reparable harm because there's actually infringement the book clarify this just a straight up question i don't know which i don't know the answer to which is i thought did the judge refused to grant attorneys fees for earlier point of time and with that not have included i guess my question that right there wasn't really part of litigation except that is a back out of the first point we were discussing a few minutes ago which is it's ok if that had been part of the litigation they pursue could prove i mean injunction and the cup court thought that was frivolous because of that that's one thing but why does the court get to assess threats that are made outside of the context of litigation whereas your what you term trash talking i hate because it sounds like my kids and injunction which the court found had no basis would have drawn that councils are required as under all levels to assess the elements of a cosmic action and then to assess its evidence which supports that cause of action and failure to do so seems to me to draw a lot of demand what we said we certainly could have if part of the problem with a claim of injunctive relief is that it requires a lot of information about the market and about the company's businesses and that's information that you don't have access to until usually later in the case through discovery so by the time we've had all of that information and the plaintiff s has information about what it's a irreparable harm it thinks is before it files the action that's council's duty yes i agree and certainly there could have been a pre filing investigation defect here and i wouldn't be surprised given the way things turned out if that was the case we did not move  occur automatically there's a reason that that argument was no longer made a trial because we proved it to be conclusively false there are many many steps that have to provide performed by each individual user on each individual phone in order for any infringement to occur think as i recall in his analysis that it respect it went to the jury at the drip the jury said no infringement but if they even if the jury had gone the other way the judge would have struck that right and i think that i think that's right that's how i understand what wouldn't this be a different case if the jury had gone the other way and we went your hurdles be a bit higher if the jury sat there and listened to all the evidence and they concluded that wasn't french meant that would be a bit of a different case would it not it would be a different case but if there is no evidence from which that jury could have reasonably reached that conclusion i don't think that should prevent the district court from determining the arguments were exceptionally we mean that's why we have rule fifty b to correct for those mistakes those those clear obvious mistakes of the jury made or perhaps for reasons other than the evidence they reach a conclusion that's manifestly wrong with the evidence that risk considered by the couric in responding to  lot more time on infringement evidence put on later but even as to the the sort of divided problem that they have with these claims requiring actions like phones there was more that came out during trial and part of that  we had to defend against all of those moving targets all at once and with the core issue that was on display at summary judgment namely whether the sending of a link the mere sending of a link somehow causes these things happen automatically the evidence that we had at the time was the essence it was just not something that any one user could control and we got the admissions that we needed from their expert at trial that they were independent steps that had to be taken by those recipients of the invitation just a few points i would like to make the comments which are true that this was a young man and a young company well not so young it was in business for six years started operations in two thousand may he was also very represented by very competent patent counsel who was aware of everything that was going out with this campaign and as i said it wasn't just an action traditional campaign if you want to look at it like that i do believe it was into clearly related to the litigation and the threats to the lawyers not even the company when i talked about the threats to agers to threaten the that how can that not be related to litigation i get completely with the court that if a demand letter without an insufficient amount of days to respond to it is something the court can consider in a few words and certainly the court can consider this conduct  and i think that's very important to say folks were important it came up during this this this last few minutes you find it telling that you feel obligated to distance yourself from prior counsel no i do believe that i would not have put everything into the briefs the way the road and i think some of the statements i think that made some some some leaps of faith and in making certain comments but i know it's a nice way of putting it but i do believe i do believe that the result was wrong i do believe there's sufficient record of it and i'm not quite sure what we do with that i mean i can't remember this kind of thing happening we get the briefs we spent hours and hours and hours we need them one two and three times and that's  largely the basis upon me check inclusions and then we get you all up here for thirty minutes fifteen minutes on a side so you generically have suggested some of the stuff in the brief maybe a leap of faith some of that maybe not so kosher or tenuous to the record we don't know what that is so we're coming out of here listening to you for fifteen minutes and the priest which we're supposed to take as being the argument of your client and i don't quite know what to do with that when we are evaluating the case lee go into the back room but i certainly don't disagree and there's a record citations and record evidence and i don't believe they've made any and the false admission of the record or said anything that was in the record which wasn't in the record you know i could have certainly had a different tone i would have written in a different way and they're the ones who took it from day one all the way through trial so you know they did what they thought was appropriate i think very important you're on something that came up at the end there they didn't even it's got to be an exceptional case and i think this one stands apart from those that this court affirms because the reasoning wasn't there the logic the support of the district court why these claim terms given their plain