your argument next in case fourteen fifteen thirteen halo electronics versus pulse electronics and consolidated case fourteen fifteen twenty stryker corp vs him or mr wall mr chief justice and may please the court the federal circuit has developed such a rigid test for enhanced damages in pat infringement cases that a large number of the worst infringers even bad faith copiers are not immunized from any enhancement the federal circuit has done that by moving away from historical practice in two key ways first it's made the test all about recklessness rather than also intent second it judges recklessness based on legal defenses developed in litigation rather than the facts at the time of the infringement the net result now that this court in octane and homework set aside a similarly artificial test for fees is a one of its kind good for patent damages only framework that does not attract me in hitmen statutes text history or purposes it was not always this way for nearly one hundred fifty years district courts conducted a totality inquiry subject to differential review and as part of that they and that in a word yes we do think that there are principles to guide district courts discretion because historically district court said certain things but the one agreed upon principle i think we all agree on it at least in the p t o do is the court said in the totality if the patent he wants to point to the nature of the infringement and say that pulls you out of the mine run of cases and that warrants enhancement it had to be more than negligence had to be intentional or reckless infringement but based on the facts of the nature of the infringer is that the only thing that's involved here any of the petitioners asking for enhanced damages based on litigation misconduct for example well i think there was some litigation misconduct here and we cited and it's in the district court's opinion that zimmer did conceal something in the run up to trial so i do think there were some other factors but i think the major one here for instance in stryker was the nature of the infringement that they hired an independent contractor the hand of the contractor patented product essentially make one of these for us so we have to decide whether enhanced damages can be awarded soley based on litigation misconduct that would seem to be a separate question or he said that the main thing involved is to ensure of the infringement so what is the issue before us yeah i don't want to save you have to and i want to be careful about litigation misconduct because in a number of the older cases it was something like concealment which was posed in front of a pre lit a geisha it was a broader category of misconduct but no i think the only reason that we and the p t o have pointed to the compensation cases in the misconduct cases is just to show that for one hundred fifty years it was a totality in court and district courts were looking at a lot of things these cases are primarily about the nature of the infringement most cases will be like that i think if the court wanted to provide guidance to the federal circuit about how to run this statute it should say go back to doing a tidy inquiry and here are some of the principles that historically guided this wasn't patented so the fact that they copied it doesn't seem to me to automatically make it something which is suitable for sanctions so the products here were marked i mean they were marked as patented but i take your point mr chief justice and i think  they could have had you know a good faith belief that the patent was invalid sure and that's exactly historically how the case is played out and it's how they should play out once this court takes care of seagate which is both parties come in at the in handsomest stage most of the evidence has come in on infringement or liability or damages and the patentee will say you copied a patented product and they haven't shown any evidence that you had a reasonable belief in validity and the defendant if the patent he has carried its burden will say no i did some investigation i  wasn't frenching i thought it was invalid and the district court will make a judgment call faced with those competing narratives about what the right answer is based on the facts our point is that that judgment call that district courts are making for a very long time has essentially been so dripped from them because it no longer matters even if you acted intentionally at the time as him or did what the federal circuit says is if you can hire good lawyers and come up with defenses in litigation you'll be off the hook and it's just aspire pointed out in the octane litigation and i now know it's true from preparing for this case you can a patent lawyer can virtually always come up with some non frivolous defense in litigation and that's why in effect what you have is almost a person a boy or maybe this is my  assume against you a suit against you that the history does not favor the history insists upon will let me assume with you that there is a good ground for clear and convincing nothing suggests that it now the hardest part for me and it is hard i don't have a clear answer is there are indeed some preliminary in test could be said for that you've read their excellent briefs on both sides and you know perfectly well what can be said for that and if i summarize it and that's what i want your answer to today's patent world is not a steam engine world we have decided to patent tens of thousands of software products and similar things were hardly anyone knows what the patents really about a company that it's a startup a small company once it gets a letter cannot afford to pay ten thousand to one hundred thousand dollars for a letter from counsel and may be willing to run its chances you start saying little company you must pay ten thousand to one hundred thousand dollars to get a letter lest you get willful damages against you sure your bet be wrong we have one more path leading us to national monopoly by google and yahoo or their equivalent and the patent statute is not designed to create monopolies throughout the united states it's designed to help the small businessman not to hurt him so leave those words for interpretation to the expert court and in this area it may well be the federal cir i stated the argument i have pretty much the way it is are and if i have i would like your response to i think you have stated the best possible version of respondents argument i'm happy with your assumptions of p t o embraces them and we are not living in a steam engine world it's a high truth and indeed thousands and thousands and thousands of small business men are trying to break into businesses that they just can't do without software and when you have tens or hundreds of thousands of p on software by other companies that means we can't break him just acquire the sky didn't fall for a century and a half and it's not going to fall if you reverse the federal circuit's framework just as it didn't fall after octane and high mark in the fees context you've got to show is a pattern to you hasn't it all and you go look at the market shares of the different companies that are seriously involved or just are showing intent or recklessness based on the facts the time is not going to be easy the intent box is copying patented products and i don't think we have a lot of dispute that where people are copying patented products in the absence of a reasonable belief in validity it doesn't matter whether they're making softwares software ok then are you sara do i have with this you just used a word that might help reasonabl we say that we're a company is immoral we're it is small and wants to run the risk follow the fed circuit route in order to show willfulness because reason in order to show will you have to show that that infringer not only didn't know it was flawless float fault but also was a big company that was pretty used to getting these lawyers opinions and also pretty used to asking their own  experts whether it really was a good patent or not and they didn't do it here what about something like just very we tried in our opening brief to embrace the full totality of circumstances including the strength of the patent the kind of notice what's commercially reasonable in the industry and the one point i just want to make because i think it's very important is to get into the recklessness box at common law and traditionally you had to show an objectively high risk so as a patentee you've got to show to the judge not just that infringement occurred but a reasonable person looking at it would have said there is a very high risk that what i am doing is on lawful because it trenches on someone else's valid patent that's a pretty high bar you're not going to satisfy that you shouldn't be able to satisfy that a lot of cases i think the strength of is argument is when you can show that the district court should be able to make a judgment call about enhancement and the fact that it can't shows you that you've really skewed the incentives because on the other side of the parade of horribles you're worried about are the people who can infringe knowing that they can discount by the probability that they'll be found to have infringed in litigation with virtually no back end penalty even if they were very bad infringer as numberless years me you w a matter of semantics but i think if she is right even if you give the discretion to the district courts to make a judgment of when to enhance penalties we have to give them some guid protects what justice briar is concerned about which i think is a yes legitimate concern but doesn't entrench of a position that just favors you know  that i mean you know i know i think there's a little bit of daylight between us and the government in the sense that we think the statute was invoked for various purposes and not just to punish infringement but to the extent that you invoke the statute to punish infringement i think there is no daylight between our position and the government's soeharto and i think what you mean might say if the guidance is in the lion's share of cases what the parties are really debating is the nature of the infringement that needs to be intentional or reckless based on the facts as they were known to the infringer and as what they thought and so if you're seeing that someone is withholding information you might be able to infer that it wasn't good faith at the beginning sure so you articulation doesn't really give life to the complexity of the same quarry so and to add then a little more i think what you ought to be taking into account is for instance the strength of the notice some of these letters are just do i articulate this in a more generalized way i think what you would say is that in judging whether a reasonable person would have thought that there was a really high risk you've got to take account of both the strength of the notice what kind of notice where they on of the patent and what would have been commercially reasonable in the industry as it exists and i think that those factors and those limitations are going to take account of the vast bulk of what justice breyer and what respondents are concerned about are courts going to be able to assess the state of mind of the infringer at the time of the infringers conduct without getting into communications with that the top with the company's attorneys yes justice alito and they did historically and i mean i would i would point the court to a case like consolidated rubber and judge learning hands opinion he said look you know that pat was open to doubt for a period of time and so no one has met but at some point here the facts changed in the infringer knew about them it reasonably should have known the patent was valid we start the enhancement running and then we get to misconduct on the back end like we had in this case and so he says i'm rolling it all in this was more than negligence and here's the enhance was able to put on an objective we reasonable although unsuccessful defense how are you going to be able to show that the infringer did not have that same information at the time of the conduct in question i think in the typical the intent cases are are fairly easy because they're generally copying i think in the typical recklessness case the infringer will come in and say here's the full some claim letter i sent you it's actually got a claim chart it maps on the infringement to the p reached out to you you never responded and you continue to infringe and i think at that point then the defendant has got to say ok i did something but isn't talking to a lawyer i talk to my engineers i looked at the client the specifications in the patent you're you're limited to devices with four wheels and i have three i think there are lots of things that are commercially reasonable depending on the circumstances and i honestly do think if you go back and look through the cases historically that's what good judges and courts were doing for a very long time before the federal circuit centrally stripped discussion from them and having taken the bar too low and underwater devices overcompensated and seagate we think the bar ought to be high we just don't think it ought to be arbitrarily high as it is now like the reserve th mr martinez mr chief justice in may it please the court we agree with the federal circuit and with all the parties to this case that mere negligence is not enough to trigger enhanced damages but the federal circuit is wrong to categorically bar such damages whenever an infringe  presents an objective lee reasonable defense at trial that rule creates an arbitrary loophole that allows some of the most egregious infringers to escape enhanced damages and most of the enhanced damages we're discussing really is almost federal circuit in our view took the law in a good direction or a better direction when it reversed its underwater devices standard which it said was akin to negligence and it tried to tighten the law versus about willfulness up to make it hard to get enhanced images we think that was a step in the right direction but we think that they made two important mistakes when they did that the first one is essentially that they said that in a case where you have subjective intent that in and of itself is not enough to establish a case for enhanced damages essentially you have to prove recklessness under an object of standard in each and every case we don't think that's consistent with the history of the statute with the purpose of the statute with the way that punitive damages is have have always been considered with the way willfulness has always been interpreted so we think that's wrong the second mistake we think that the federal circuit made is with respect to how the recklessness inquiry is supposed to happen so recklessness everyone agrees is an objective inquiry in every other area of law where courts are conducting an objective inquiry what you actually what you're supposed to do is you're supposed to take a reasonable man and you put him in the actual person who is accused of wrongdoing in his shoes and you take what that actual person knew and you figure out whether a reasonable man in that person's shoes would have thought that there was a very high risk that the time that that issue was unlawful and what the federal circuit does is not that what they are centrally doing is taking the reasonable band and giving him the benefit of omniscience giving him the benefit of hindsight and saying what facts do we know at the time of trial and now that we know these facts at the time of trial should we retroactively sort of i didn't think they were doing that i thought what they were doing was saying we are not going to allow punitive damages in a case where the patent is so weak and so we're really not looking to a state of mind and the reason that we're doing that is the reason i said previously and the reason that we're not leaving it up to four hundred seventy five trial judges is because those four hundred  seventy five crowd judges don't see fat cases very much and where they have a pretty good idea of how employment law tort law and all kinds of other law works they don't have that a good idea in respect to patent law and we the federal circuit do that's why we are created and we are afraid that if we do not use this objective standard what we will see is a major effect discouraging invention because of fear that if we try to invent we'll get one of these letters and we can't afford one hundred thousand dollars for an opinion i just repeated the same argument but we did create the government that expert court to make such determinations in the face of language that seems to allow it and so what is wrong with their doing what they were paid to do i think there are a couple things that are wrong with with that because i think the first thing that they're paid to do is to look to the text and history of the statute and the texas is as you said doesn't provide a carrot categorically it's silent so it doesn't provide the kind of categorical bar that the federal circuit is asking for and the history of the statute affirmatively undermines that categorical bar because the history makes clear that subjective bad intent they want and malicious pirate that this court talked about in the seymour case that is to fit a sufficient basis to enhance damages with respect to the recklessness standard the fact that recklessness is objective where a patent is of questionable validity we think it's important to encourage people in certain cases to challenge the patent or to make sure that innovation is not being stifled and we think that the ordinary standard test for recklessness and our test accommodates that concern because it it would treat a reasonable good faith belief that a patent is invalid or that infringement is not occurring as a recent to conclude that enhanced damages are off the table i thought as i read your brief in the petitioners we've got the sense that there was quite a bit the difference between the two the government seems to be taking a much higher standard before these punitive damages or however you want to describe them would be allowed to use terms like agreed it's a lot that your  friend uses terms like you know intentional more than mere negligence so this is happening do you think that perception is an accurate i think there's some minor differences let me explain how i see our standard and maybe what the differences are we think our standard covers three different buckets of cases the first bucket and this is borne out by the history of the first bucket it cases in which in which there is intentional conduct or bad faith conduct under a subjective standard a subjective an bucket number one and just just of one just for a brief moment by intentional you mean intentional infringement not intentional no intentional conduct by a person who believes that he is infringing a valid pattern in other words if you have a good faith belief that the patent is not valid and that beliefs reasonable we don't think you're an intentional infringer this is the second bucket covers recklessness cases and we all agree that recklessness is judged by an objective standard where we disagree with the other side as we think it's judged based on the facts and the circumstances that are known to the actual infringer at the time of infringement and then the third bucket that we think is would qualify for enhanced damages or cases involving other types of agree just misconduct not having to do with the infringement itself for example if there is corporate espionage if one of the parties destroyed evidence i think the difference between us and petitioners are very minor i think they would also allow enhanced damages for certain purely compensatory purposes even when a case did not fall into the other three buckets we can have  interesting historical discussion about whether or not that that basis for damages is warranted or not i don't think the court needs to resolve that in this case because it's not presented but we do think our test is limited to those three buckets essentially intentional conduct reckless conduct and other types of if you wanted to use that those three buckets to encompass willfulness i think we wouldn't stand in the way of that i think the problem that we see with what the respondents are trying to do is that they're looking to the history the prefer nine hundred fifty two cases and they're taking the word willful out of that they're plucking that word out and then they're defining it in a way that's at odds with the way in which willfulness are the way in which the standard was applied before nine hundred fifty two we think if history is the justification for imposing  willfulness requirement in the first place history has to provide the guide for interpreting what willfulness means or what the standard is and i think that that one of the ironies of the respondents position is that they agree that this statute is section two eighty four is trying to get at culpable infringers it's that the touchstone is culpability and they agree that recklessness is culpable enough to get you into enhanced damages world and yet everyone agrees everyone in the civil law in the criminal law intentional misconduct is always been considered worse than reckless conduct and yet their test would allow a class of intentional infringers to essentially get out of jail free based on their ability to hire a lawyer and come up with a  possible to imagine let me let me make it concrete imagine a case in which there is intentional violation or a reckless violation based on the facts known at the time and later the the person is sued infringers sued and he hires a law firm that scours the world and they find the library in germany that has a ph d dissertation that has some patents that arguably anticipated the invention at issue so that's a new fact that wasn't in anyone's head no one was aware of it at the time the infringement occurred and maybe that law firm then puts together a reasonable but wrong theory under which the patent is invalid in light of that prior art we think that's a case in which the the conduct was culpable at the time of  point and and maybe some of you that what happened in one nine hundred fifty two for some of the reasons that justice breyer gave is perhaps not the most relevant thing if you were doing it just on policy would you come up with the same test yes we w o would we think that the policy concern that congress had in mind of ensuring deterrence and punishment is outweighs some of the considerations that have been raised by justice pryor and others as long as we realize that as long as you have a good faith and reasonable defense that will be a defense to liability and as long as we realize that you need to have the kind of intentional or reckless conduct that you know it's a very high standard if you need to have that kind of conduct in order to warrant his damages thank  mr philips thank you mr chief justice and may please the court before i get into the substance of my argument one point that seems to me to cry at least in response to the characterizations by my friend mr wald where he repeatedly describes him as conduct  copying the invention in this case what what the zimmer corporation copied was the product itself the patent wasn't released or issued until two years after that initial copying there's nothing inherently wrong with finding  hundred ninety eight two years before the patent even issued as want to clarify that i also want to go back to the point that i had him they had been up at napa cank right but there was no evidence whatsoever that zimmer at that time it any knowledge of characterization of the facts to say that this involves purely copying beginning from the very outset of the process that's not to say that there couldn't be an argument somewhere along the line that there that there there might have been an argument of willfulness but this is not a classic copying case and that i mean a lot of ways this case comes down to sort of trolls versus pirates in terms of how you want to analyze it and our view is and i thought the example that the solicitor general's office just offered you tells you everything you should know about this this could his criticism is that good lawyer is hired and goes off and searches in the german libraries and find some basis upon which to challenge legitimately the validity of that patent now if it had turned out that those german sources they had in fact didn't demonstrated that patent was invalid the position of the world would be that's great because this patent should be declared invalid in the monopoly that attaches to it should be declared null and void and on enforceable the fact that they found it and it turns out not to get you over the hump shouldn't be by any stretch of the imagination lead to an to a standard of the law that discourages us from going out and trying to find both the limits of the meets and bounds of the patent itself is as defined by the by the patent holder and to challenge the invalidity of those patents under all circumstances and justice briar i mean that goes to the core point that you're making we're not talking about a situation here where it's obvious when something is infringed there are thousands of patents hundreds of thousands of patents there are lots of entities creating new products every day new services if you want to go beyond the products in protection i think it's unfortunate that congress hasn't passed a special regime for those kinds of patterns but they have in that such in that a world like that we are seeing more and more companies that have more and more and continuously more patents and if all that happens is to send a letter to somebody who has something that's trying to break into the industry and they don't have enough money to hire many lawyers that becomes a serious barrier and that the government's rule in your view and the opponents rule in your view will raise those barriers to entry that's a very elementary kind assumption and i do admit it supported by the briefs on your saw and i is there anything you would refer me to that would suggest that maybe i have a point and your briefs have a point  well the briefs that that i thought were particularly effective justice prior to their make as brief of public knowledge and of course i've looked through them and i understand there are effective i just feel a little bit more comfortable when i can read something that isn't participating in the litigation and it too bears out this view well professor lumley has written on this subject repeatedly and he was lonely is also said quite a lot that he's worried about lawyers coming in and inventing various things that make the patent look weak after the event you see i've been he you know not totally with you on this but there are two but there are two separate issues here let's so i will take those  identifies the precise claims identifies exactly how you infringe it and it's ignored well i can assure you that it's not the standard letter and that's not the kind of letters that are involved in this case the letter we got said we have patents would you like to would you like to pay a royalty for those patents it didn't identify the claims it didn't tell us anything about them we handed them to an engineer the engineer looked at him said it looks the same as the product we're already producing put it aside we went forward with it and we find out later we are is there a way of compromising this in this way you say to the circuit we see your point ok and by and large we accept it but there can be very big companies that make a habit of getting those letters and giving the things to engineers as we saw all right now in this case and we're something like that goes on normally then a refusal deliberately to do it for fear it comes back with the wrong answer or you do do it and you giving them some leeway allow around the edges just prior understand the desire to always be in a position where you can sort of catch that one party that's out there and i think the real issue there is twofold one is is it worth the candle to go i mean  if you accept obviously the plaintiff's version of it there there was a fair amount of effort in your other world which is about me because i can point you remember this one thing that got it was a good point to always i always appreciate it when but there's not a whole lot of worry about protecting the patent owner i can't shrink it that historically enhanced damage is were automatic and they were automatic because of a policy judgment that owning a patent entitle you to not have people infringe willfully or not willfully and i accept that at some point there was a different judgment me that that good faith infringers should be treated differently than other infringers willful infringers but i don't know that that things so far the other way that it can only really be that if you come up with something any difference whatsoever in the litigation that's not frivolous that that balance of how do we get a similar protection without an artificial chasse that i don't think is right right where where do i go well let me at least correct one portion of the statement as you said enough to put forward that it's not frivolous i don't think that's the appropriate standard objective reasonableness is the requirement that the federal circuit has looked at and i think that's more than simply the ability to satisfy rule eleve think there has to be a substantial defense and substantial defenses were put forward in both of these cases indeed these were in both instances close cases so i would hope that that's where the court would of would put the interest or thought differently in the second case right but again i think it's important to look at the way the court of appeals analyzed it in the reality is i think if used and it's the reason why you have to have an experienced an expert court of appeals looking at these issues on an objective on an on the basis of an objective analysis because they're the ones who have seen these kinds of claim construction issues and seen these kinds of infringement issues are in the best position to be able to say this is objective lee reasonable and therefore not something on which enhanced images should be added but i think it's important to put in essential or affected has completely made the and has damages purely punitive because every other piece of conduct goes into the portion that talks about whether you get the attorneys fees that are it's an extraordinary case yes your honor i'm sorry we are after all dealing with statutory language and i'm not sure it's been quoted yet says the court may increase the damages up to three times the amount found a recess period running at the federal circuit standard you've got shit you know got heightened burdens of pro particularly articulate i mean the way we the courts have been used to dealing with discretionary standards for a long time and the way it works is historically you know the exercise of discretion in a lot of cases you know where's  channel which kind of confines the exercise of discretion and i think the other side's argument is based on that history right over time this is what discretion has has given us in this area and therefore you get beyond that it's an abuse but to erect this fairly elaborate standard on the basis of that language i think is surprising i understand that and that's why i think you have to take it one step at a time first or you you quoted one portion of the language of of two eighty four the portion that i focus on particularly as the  begin with damages adequate to compensate for the infringement so the two eighty four is now six and on since one thousand fifty two has been focused exclusively on the infringement it's not any other kind of ancillary conduct it's only enhanced damages for the infringement because those are the only damage you know that those damages are one and the same then you get to the point where seagate says if we don't have a strong enough standard of recklessness and willfulness and an objective standard that can be examined b independently the downside risks and the harm to the economy is is very substantial there have been there are huge numbers of these letters being sent litigation it skews every aspect of it and then congress comes back in the american fence act and through the process leading up to the america invents act seagate comes into me and the and the federal circuit takes a very hard look at it congress looks at that and says we're not going to change section two eighty four because in light of seagate wilfulness standard which is the standard the court was very explicit about that helps solve the problem that all of us have been concerned about the congress didn't just leave it at that where you have to infer this from silence or in action by congress congress passes section two ninety eight and section two ninety eight it talks about opinions of counsel and what role they play in the wilfulness determination seems to me in order to give section two ninety eight any significant meaning you have to have concluded then that two eighty four necessarily incorporates a standard of willfulness even though obviously it's not in the language but as you know how far that gets you mr phillips because mr martinez just told us that he'd be happy to call willfulness his test  meant different things to different people here and there's nothing that congress did that suggests that when it used that word willfulness it really meant the seagate test well the only test in front of it at the point at that point in time was seagate seagate was the definition of what two eighty four was about and what the standard of willfulness was about but i think what's equally important justice kagan is concede that wilfulness can have a lot of different meanings but the meaning that the seagate court would opted was the was the meaning this court adopted in safeco and it's interesting because my friends have not been say the word safeco at all in their twenty five minutes of presentation but this is why it's not such a big j what seagate said is what's the what's the best source for trying to come up with a sensible way of applying willfulness and they looked at safeco and they said you know the best way to do it is with a recklessness standard that's an objective determination and the fact that there may be essentially a question of law the issue is is there an objective lee reasonable basis for what's been done here don't believe that well the clear and convincing standard i don't think is as is particularly relevant to the how this case got decided because the at the end of the day it's not because it was clear and convincing it into the day it was because there was a check to fully reasonable defenses that were put forward in both of these cases have in that sense he there acquiesced ratified it under those circumstances and second we're talking about punitive damages and therefore under normal circumstances certainly not a matter of indifference when you're talking about allowing a point of to go forward and and to skew completely the entire litigation process as a concept having access to treble damages and that context some heightened standard might make sense in this context is hard for me to get excited about one way or the other because these are not really is critical the two elements of this that are absolutely critical and expose in some ways it goes to the question you know it's just a sort of my or what are you at what are the absolute critical elements that you need to take out  seagate to apply in these cases and candidly both would you affirm in both instances on the facts of these cases one you need to have an objective assessment of whether or not there is a reasonably objective set of circumstances that allow the defendant to say either this patents are invalid or we do not infringe those patents and two you have to have that reviewed non deferentially by the federal circuit in order to ensure that the five hundred or four hundred for going to district court judges there or do not sort of go off on a tangent and that we get the consistent review by the objective an expert body that the federal circuit is the recklessness the decision here seems different from those that generally come up and maybe you can provide an example where this occurs outside of this context usually it to determine whether someone was reckless you have to assess the nature of the risk the severity of the risk and in the typical tort case the severity of the risk me seem greater at the time of trial than it did at the time of the tortfeasor action because someone has been harmed but in this situation that the degree of the risk seems small are at the time of the determination of enhanced damages that it may have been at the time of the of the in french but i can't think of another because it's a it's a legal risk and the first determination may not have been made with the assistance or very intense an analysis by attorneys and the whole lot of time turns are very much involved is there any other situation where recklessness determination has those characteristics well i think i think the copyright would probably be the other one that sort of attends to it in the same way because it's essentially the same kind of an inquiry part of the problem is it's the nature of the continuing tort action and it's also the fact that the infringement determination  is a matter of strict liability so you know and obviously different ways of different situations that can arise but you know if you're in a situation where you've come out with a product you think it's a perfectly good product you may or may not have been looking at pen didn't see anything that creates a problem for you you you put the mark you put it in the market two three years later somebody sends you a letter and then and then and the letter is not very specific maybe and then so you say i don't know i don't see anything here i don't know i don't envision where you keep going forward you get and then you get a very specific letter and you look at that and you say well gee ok i see that i'm a part of the problem with the notion of looking at these things and saying we're not going to have a post hoc analysis is it's almost impossible to define post hoc from when because it work into our own tort law i mean you can imagine situations where when the actor takes a risk it looks tremendously great the by the time trials over it was pretty small it happened but you know eggshell skull he thought almost certainly had one and he did but the chances of his having one million to one against it punitive how does the reckless you have any  an additional element for the it's an as an additional way to define willfulness without completely wrecking the thinking and i think if you if you are in a situation where you're past recklessness that is there is no defense there's no objective there have no you know if this is a true pirate no objectively reasonable argument they they saw the product they build it maybe they don't operate within the united states they just sell here they operate outside the united states think they'll never get caught it cetera and then those circumstances they don't have a defense and then you also can prove that they acted with with absolute intent and knowledge of the pattern that's it or you know then the question is would you take that to the to the max to three times because that's where the same thing that's quality mr jones sells a product that involves a patent and it's selling very well and mr smith comes along and says i want to copy that patent and that and act and sell the same things so that i can  reap those profits too and and does that now the seagate test says that as long as his lawyer can come along at the end and raise some kind of doubt about the patents validity the fact that i forget whether it was mr smith or mr jones if i want to the fact that he went and said i am going to copy this patent so that i can reap the benefits of some other person's work that doesn't make a difference and that's i think the question that justice kennedy was asking it seems to stick in the craw a bit right well one of the sort of justice kennedy is there is a role for that kind of subject of bad faith but it's only after you make the determination that maybe that is not enough because you know mr jones and i'm saying is it worth my while to go copy this patent and i think you know what a lot of patents are not valid i'll take this risk i will i will make a lot of money selling this patent and product and if somebody calls me on it i'll go hire myself a lawyer and that lawyer will come up with some kind of argument about why the patent is not valid after all now that seems like the bad but that seems like a bad incentive because a keygen the two basic points i would make to that first of all of the remember it's mr jones mr smith but the bad actor will call the bad actor in that circumstance obviously has to pay the full compensation for the infringement which is in some instances tens of millions of dollars will almost certainly be subject to attorney's fees under section two eighty five so it's not as though you're getting a pass  that such and that situation and i understand the desire to have enhanced damages against that particular bad act it's why i say in a lot of ways this case comes down to what do you worry about more pirates or trolls my sesame to this and i think it's borne out by the way the federal circuit has looked at this problem is that they're not they're very they're not very many pirates out there and if you keep a rule that is designed simply to get the one in a billion pirates i would call them unicorns but one of the million pirates could end up with a rule that will allow the trolls to go after every legitimate producer of products and services in this country and that's the price you have to pay to get at that really bad actor instead they get us and you know this is an individual flaw that he could make a lot of money by taking those cotton goods in the machinery that they were used in selling you know all over the united states and so he did it i think it was alexander hamilton i'm not sure and as a result new england grew rich now sometimes he got a letter one day that said we have a patent we have a patent on it would've cost him ten million dollars to look into it needn't have all that money so he thought he'd run his chances suddenly i'm not so sure which way the equities look work out that's your point both of you have a point and that's what i'm looking is some way we can get the real worst ones without destroying what you don't want to have destroyed and yet where he's really worried about the real worst ones and i think the answer at the end of a is congress made the choice i think they just use the word willful i'm not really don't know but it did it against the backdrop of the seagate standard because seagate clearly made a judgment that is between a raft of claims by non practicing entities arising out of a raft of letters and everything that goes with that between that and the risk of a true pirate out there that congress is going to that it bought the better answer clearly was that we should we should protect and limit the scope of the patents and make sure that they are being properly challenged in the reading of it six to choices reflected in the statute which leaves a lot of discretion to the district courts and i think all a lot of the arguments we've heard today are the sort of arguments that can be made to the district courts discretion in a particular case saying you know this is this is one of those pirates or you know trolls and it's of serious one or it's less serious one and you have the standards to apply and  district court will exercise the discretion and if it's out of the channel of discretion then the court can review it on that basis mr chief justice i think the problem with that is is that unless you come up with you know miss i don't know what egregiousness means and i don't know how you how you evaluate that on review i do know what it means to take an objective lee reasonable position more than simply something that's beyond frivolous  substantial argument that either the patent doesn't extend to the to my particular product or the patent itself is invalid in circumstances where where that is true my hope would be that the court recognizing the extraordinary importance of limiting patents and the monopolies that flow from there would drive the legal decision in this context of the legal standard in this context exactly where the see where the court could opt out at seagate that's the court that has the experience and expertise and i would hope under these circumstances in this very unusual situation because patent law in this context i do think is very different than almost any other tort context i would hope in the one and if in the decidedly one sided approach the two eighty four is where it only gives to the plaintiffs the ability to do what they can do and what they want but the court would adopt the kind of rigorous objective standard that allows both for the both for the determination that the patent is invalid or doesn't infringe and that that's examined on an objective basis if the no further questions your honor i'm sorry the court justice i have two fairly simple points the first is as we and the p t o and many of respondents are going to meet he recognize the system as it currently stands is out of balance and we have tried and i believe we have succeeded in crafting an approach the balances of the courts concerns with the need to respect the rights of patti's including small companies like halo and we've done it in a couple of different ways reasonable good faith efforts to chip to challenge patents are not going to result in enhanced damages and intent and recklessness are not going to be and should not be easy to show now the federal circuit has adopted a contrary approach based on its expertise it thought it had to in light of this court's decision in safeco which it has misread safeco says if you adopt a reasonable view of the law at the time you're not acting willfully it doesn't say if you subjectively and correctly believe that you were violating the law you are held not to be willful because you have hired a good lawyer and come up with a defense later and that approach is what is skewed the incentives in the patent system and taking us out of balance our approach incentivizes good commercially reasonable behavior under the full set of circumstances at the discretion of the district court incentivizing good litigation and the second point i just want to make quickly as we do have the evidence or burden and the standard view in this case i think it's clear that the there isn't any basis for the clear and convincing standard on the standard or a view i think  resolves that and i think piers to be underwood resolves that these are determinations that are bound up with the facts and just as the court said in peers whether a litigator position is substantially justified is a mixed question of fact and law so to the questions here these should be reviewed for abuse of discretion and it's very important for the court to say that halo should go back to the district court and be analyzed under the right standard so the evidentiary burden matters in strike or the district court actually got to the discretionary way do did it and on appeal zimmer never challenge that is an abuse of discretion it just argued about the objective prong when this court takes that out of the analysis as it should there's no basis to disturb the district court's discretionary ruling and i as the court knows from looking at it it's a thorough and reasonable opinion one point of mr phelps spot up that you didn't address in your initial argument maybe you could say a word about it is section two ninety eight of the american america invents act under under your reading could evidence of failure to obtain or introduce advice of counsel be used to prove that the defendant infringed in bad faith no the patentee cannot put that issue affirmatively all to ninety eight does it dealt with that very narrow problem when the patentee comes in and wants to show intent or recklessness it can point to your copying of the patent it can point to the fact that he gave you really extensive very detailed notice tried to license with you you didn't do anything it cannot put at issue whether you talk to c now the defendant maybe got to that point under the language of t ninety eight because to ninety eight just says when you're proving a willfulness whether it's factor as it is in our approach whether it's the end all be all as it is on their approach whenever the patentee is trying to prove that  and i would just stress for the court the congress at the time looked at putting willfully in the statute and it looked at putting something virtually identical to seagate in the statute it didn't do either one so i don't think it can be taken to ratify the federal circuit's current approach thank you