and and the legal standard remains the same recklessness under halo as it has been throughout the course of this case without challenge or argument by cisco and the rd point i'd like to address toward the end if there's time factors as assessed by the district court itself again i want to emphasize that i understand there is a dispute about whether the engineer testimony remains relevant or not but that isn't essential to this appeal  judge andrews found the evidence on two of the factors at least arguably supported sri even without any engineer testimony even without any debate about opinions of counsel and that really should have been the end of the issue satisfies the post halo standard of merely preponderance of the evidence both those cases say that in fact there's a host of federal circuit cases say that and of course halo itself i think one of the things that maybe got lost in and that's a and b you only have to prove it by a preponderance of the evidence in this you have here one of really a fair number of cases where willfulness was proved under a much more difficult standard by a higher burden of proof and that's all the more reason for this court to affirm this record i do want to just emphasize the fact that this is  o in this case the jury found induced infringement right and is not challenged on appeal that combined with some other things m though you know i we've never taken the position and this was the subject of a little back and forth with judge andrews at the at the argument a low we're not taking the position that if you prove inducement you therefore have proof subjective willfulness or recklessness under halo there there there may be a difference between the two we're not saying that you know airco if you haven't to some an error go you have subjective  highly relevant it goes to the mental state of in this case cisco at the time that it acted and much of the same evidence over laps and my perspective right from our perspective as a reviewing court when we factor i think it's a factor to be honest i'm not aware of the case from this court where the court has been required to analyze whether there's any daylight between an in ment finding on the one hand and a subjective willfulness finding on the other and i'm not prepared to say it could never be the case that you could say somebody induced infringement wasn't reckless  yes and and on this record of course you do have so so you have both here you have a situation where the jury found inducement which means it necessarily found cisco's infringement defenses to be said look i'm going to throw out i think i have to completely disregard the engineer testimony i think i have to disregard whether sisko got an opinion a counselor or not what's left he looked at what's left in his view and he said well on two of the factors it's arguable evidence went both ways some factors favor willfulness some factors did not favorable for us the jury found willfulness in this court said we that's for the jury you know if it goes both ways that's the end of this that's the end of the story i think of course that didn't happen right the legal standard in this case has never been an issue it's never been appealed the jury instructions never been appealed and and if you look at as i'm sure you have what this court its prior opinion about the legal standard it set a lot halo's the standard and in fact the court proceeded from the from the proposition that halo quotes halo to say that the type of conduct it certainly means that just stole but it also means that i guess i think conceptually it means at least two buckets of things one is you've got the deliberate intentional after who knows what they're doing is wrong infringes a patent without any defense and they go ahead anyway but the nd bucket which is and we think that applies here but even if there's a disagreement on that the nd bucket is you should have known that  what you were doing was plainly wrong because you put on frivolous defenses because you never believed those defenses because you over litigated a weak case that is this case and  halo and discoursed decisions interpreting halo very clearly say that nd flavor of willfulness is alive and well and is sufficient before you sit down can i just ask you one question about the enhance more limited period of time couldn't go to the question and hand spent or even the dollar figure out the enhancement the answer is and this once i believe is my fault and i apologize for it  the answer is no because the only damages included in the damages in this case and included in the enhancement in this case are post notice damages we made that point  in our grief our opening brief at sixty seven dollars our damages expert started his his calculation with that made two thousand and twelve notice date and so no so there's no there is no nothing in the base here there's district court could decide whether there was substantial evidence of willfulness during the period after cisco was on notice of s rice patents in doing so the district court on remount was not writing on a clean slate this court provided substantial guidance on what post notice evidence counted as evidence of willfulness and one could not and that actually i think resolves most of the issues that us right has raised in this appeal the only new issue that us right is raising in this appeal i still the jury was instructed on that isn't that correct the jury was instructed in those the instructions were not objected to to specifically consider whether or not there was a reasonable that i have to presume that the jury could have found enough rights favor on that rd factor and the jury just waiver argument of jurors doesn't make much sense to me and this court doesn't need to reach the waiver argument to to rule in our decide i mean i think the that the my problem is that there are a lot of factors and the jury can weigh them and ultimately come to a conclusion what's your response to your friends argument on the other circumstances test the reviewing court has to look at the issues the evidence on both sides of the issue it's not a one dimensional test and the nd thing here is that the district court did actually give as  credit for that argument with respect to the rd factor in the jury instructions that i have to presume that the jury could have found some evidence of that but it's a multi factor test and that alone doesn't add up to substantial evidence willfulness and you have to consider all of the evidence in the record which includes the evidence that cisco did not copy it includes evidence that cisco engage with sri after learning about the patents denied infringement and presented defenses and that's it a record includes there is some arguable basis with respect to two of the five factors but there's evidence on the other side of this and that are you will basis does not amount to substantial evidence of willfulness and i think that that  struggling a little bit because this court cases and halo use different additives that different times i think that the fundamental point that this court case is making the halo makes is that what is required for willfulness is something that sets the case apart from an ordinary case of infringement knowledge of the patent the fact of infringement alone is not enough to establish willfulness and i don't take what this court said in its to case where sri and echo brands are cited together and those two standards i think are getting at the same or that the language in those two cases are actually making the same point but i think that all of that is beside the point when you get to enhance damages because sri is not saying that the standard the bridge site is the wrong standard for enhanced meant and when the district court was explicit about the basis for its ruling the basis for its ruling was  cisco's infringement was not wants and malicious and bad faith that that's that's saying that the halo threshold for enhancement is not met and that is an issue within the district courts discretion the district court is entitled evaluating in making that discretionary determination and there's no dispute about the standard you know that that really results that he denied the motion for enhancement he was clear about his reasons we have we don't we have some older precedent in this court that says wh has to provide some reasoning for why that decision is being made because otherwise it's very hard for us to review it because read review a decision on whether or not to enhance in the amount of so i think that the reasoning is everything that he had explained on the prior page is where he went through review the evidence in the trial record and actually i think a more favorable analysis for sri than he would need to make if he were just addressing enhancement on its own he addressed it through the substantial evidence standard if he were actually addressing enhanced meant on its own that that wouldn't have been necessary and he could have just used his discretion to say i don't think that's supported here looked at the same conduct and both of them decided that a full award of fees was appropriate i think that there are two things going on here st the original judge's decision was based in part on willfulness them that's why that was vacated and the  nd judge's decision was based on a determination that goes a higher case was weak and that is not correct for at least three reasons the st reason is that said because position with respect to damages was not we cisco forced district court it was limited to spur specific acts and certain events and it doesn't relate at all to the damages issues it doesn't relate at all to the section one hundred and one issue and the rd thing is they didn't relate it all they got damages they got they got a feel ward from a period before that litigation even began and those fees by definition could not have been caused by cisco's litigation conduct and defenses there wasn't even a case at that given the overreaching and excessive positions that sri was taking with respect to damages and infringement in this case where it alternately took the claim of damages to trial that was more than twice what it could prove and it substantially narrowed the categories of products in fact addressed enhanced ment's somehow on the merits i don't think that's at all a reasonable characterization of his opinion or what he in fact if the sentence cisco fastens on is in the context of whether the simply didn't reach enhanced because he thought he didn't have to because of the willfulness determination enhancement was briefed at length below to judge andrews that read factors were discussed at length to judge andrews judge robinson in finding that enhancement was warranted went through the read factors in detail the notion that an implication from one sentence in judge andrews opinion somehow addressed all of that is is i fine and that's not really weighing and we agree with that but that of course isn't what happened here that the court really weighed in simply look at all the evidence and consider all of the evidence last vs just just i do want to around in front of judge robinson cisco made an apportionment argument in its briefs below to judge robinson then they appeal to this court they do not make that argument they do not say anything at all about  even if you do want to talk about it pick up on judge o'malley's point this is a case of pervasive misconduct just robinson clearly said all sorts of things implying that judge andrews himself independently reviewed it  and in fact as we cite in the papers judge andrews in a nother case characterized cisco's behavior in this case as per base of misconduct that's a sort of an overwhelming i think  misconduct caused all the fees incurred by the other party there's no pervasiveness exception to causation there's no pervasiveness exception that permits punitive fiords and that that comes straight from goodyear and this court says the court only escapes the grind of favor getting out the factors when the standard is met that all of the fees were caused by the other parties misconduct and so that that has to be the guiding principle and pervasive just means all of those fees were caused by the other parties misconduct and that that can't be true here for the reasons i already addressed the damages issue the section one hundred and one issue and the fees that or sauce and reward from before awarded from before there is even a case filed i do want to turn to the waiver point to before i sit down we didn't wave this argument this is the st time the st time that us right ever saw these in the absence of for us to raise a response to an issue that's st presented in the context of this current motion of appeal that's right they actually made the waiver argument they made the waiver argument in opposition to cisco's petition for panel rehearing and again before the district court no one has ever found waiver and there is no basis to find waiver now i do also want to briefly address the appropriate remedy on attorney fees as are i made the strategic choice any lesser amount cisco respect their request of the court reversed the award of fees without arena and as for i should not be allowed to try and try again until it proposes amount of fees that's actually legally permissible and supported on this record but we do