court i represent my clients run kramer sally abraham and third wife international i will see what i point out to your honor's that in the briefing from wife international i will see it was lumped together as one of the parties speaking fees here it is not seeking fees there's no argument that it prevail on any claim for the district court that was simply the result of using the wrong  as mentioned i looked at the rate this issue last night at the end of the day there were not substantial cost here your honour's the critical issue is the attorney's fees there were relatively substantial attorney's fees incurred by my clients despite the fact that they repeated litigation is exceptional is according to united states supreme court very clearly reviewed for abuse of discretion the issue in this case is not whether or not you know one conduct was exceptional in fact the district court never got to th very likely that even if we were to find for you one prevailing party that anything is happening then you're encouraged more costs now i understand that if if the district court it unequivocally said this is not an exceptional case and there were two basis for his ruling here we would respectfully that don't believe that this district court has come to that conclusion i do know that there is a throwaway line what i would call throw away line it's certainly not a holding it's certainly not something that's backed up by analysis that the conduct may not be exceptional or as he sees it on the papers but we do when you look at the record certainly what we went on here isn't typical patent litigation isn't typically how this case should have played out and we do view the underlying conduct as exceptional and we'd like the opportunity to go back to the district court and argue that we already have that opportunity right you had the opportunity because when you made your motion you had to present all of that evidence in the context of the motion so that issue is was briefed in front of the court that's absolutely correct determining prevailing party i think the sentence i think we can agree the sentence is a perfectly word if if the court explicitly said i would not find exceptionality on these facts we wouldn't be in front of you that would be a waste of money infringement from the beginning this case was in for enjoyment through advertising and in a rather tori's creative responded yes we have advertised this for sale and in their summary judgment briefings they invalidate the patent issue and i think that's important if this was an affirmative defense the residue of hard argument certainly would not be as strong but they raised an argument that the patent was invalid the reasons you're saying this basic a d case was about these arrests first for b j actually right my client called them directly they ran to court and i believe st louis and filed a d j action we called them and said hey you don't have jurisdiction symbolised they agreed to transfer that action to arizona and in the interim we had filed our infringement lawsuit and that infringement lawsuit as most in front of lawsuits do had a claim for direct infringement a claim from bruce miller infringement and a claim for contributory infringement all three very early on in the case it was mid that this that there was no sale we took discovery on that issue didn't discover a sale so instead we had a direct infringement claim under claim eleven of the patent for advertising for sale a product that was patented that was the only claim that went forward on we quickly disclaimed the ability to go after damages here this became a permanent injunction case that's all we were seeking and the only expose question is really important because as i was researching this i was trying to ascertain and i didn't get a clear picture from your brief on this but i was trying to ascertain what the scope of claim preclusion would be in a circumstance like th over do love or claim preclusion doesn't apply in that circumstance that you're recognizing absolutely absolutely and i think that's it that's really critical here because you know big got out of our direct infringement claims leave the escape liability they escaped a permanent injunction here as a result of the court's ruling on whiteness but you know if they turn around tomorrow and start selling the product that they advertised we will sue them for infringement and in that case they will be precluded from challenging the patent issue international directly to someone a creative compound indicating hey i received this solicitation e mail which attached the flyer to it and i have a patent over that that product you cannot go  transfer and as a result of lack of personal jurisdiction over mr kramer because they were under the idea at that point that their life international somehow could be tied in to jurisdiction on personal jurisdiction and eventually they agreed please the court criticism is that this case was litigated to a draw and the new party was a prevailing party over thermal ice believe that there really a party even though they failed to get a judgement on their direct infringement claim their contributory infringement claim and claim there is a summary judgment that was rendered against them based upon the fact that there was no direct infringement now the court probably could have done the same thing on direct and contributory by for some reason did not do that but decided to render summary judgment on  of infringement that was not appealed so that remains and it's it's you know unchangeable now and that's it's a case that actually well you know puts us in a different position because the inducement claim they cannot bring even though they are only a sort of claim if we sold a different product then perhaps they could claim inducement infringement on that product but if we tried to sell this exact same product again well that issue has been decided so if i could your honor i would like to actually get to the standard to review when you say all aspects i believe they're referring to you know if it's not binding upon the score then it's at least something this court should consider because all aspects are all aspects if we can take the supreme court at their word that they mean that all aspects they don't circuit courts have addressed this question of prevailing tarty and how it's to be reviewed because it does appear in every constitute and in other areas outside of patent law and i feel like the result has almost consistently universally at least in fifth circuit i mean i don't know if you looked at some of those other circuits in preparation for today but for what it's worth the dear more cases we looked at all of the other circuits and that she's right there overwhelming majority of them are law and in all the cases i find it always treated the determinations treated as legal and seem a little difficult for me to assume that when the supreme court is not actually even defining those words or working with that in high mark it nonetheless and then to change the standard that ought to be applied in every area of the law when assessing the prevailing party is well perhaps going back one step at least for the assessment of the billing party with respect to  and the balance when there when one side succeeds and one aspect another side succeeds in another as the tack that there is a distinction in terms of balancing determining who is the overall prevailing of prevailing party that was taken into account so i think those factual terminations and view of how the case was litigated does play and on who is a prevailing party and what standard of review should be used in any prevailing party even though they lost on multiple issues because they changed some victory on the issues on which they start relief that's not the case here every issue upon which they start relief they did not mean they only thing they got is the very narrow issue of accused i believe we could raise it invalidity not on those grounds but we could raise into literally on other grounds that same products being used and we could raise invalidity one different arguments that may arise that we didn't  in the lord for how could you say we didn't argue so this is this is critical to me because i don't know the answer i'm trying to figure it out we have cases that claim conclusion and this is a quote from active our  circuit and i think that language actually is cited in other circuits as well suggest that what you're precluded from wouldn't just be this one little prior are all related to look at the concern but maybe you prefer prevented from also saying like obviousness on that maybe you'd also be prevented from other colluding concerns that where those references were within your possession and you chose not to assert them do you understand what i'm saying so if you have was for could have been raised seems to vs foster all talk about the fact that if a new product is accused of infringement then valid invalidity issues can be brought up again by the defendant so i'm not sure how local plies of then the could have been raised because those cases don't deal with could have been really you're absolutely right in a whole new product which is sort of like a do over but suppose they want to sue you in the future on this product do you have the right to bring any validity defends the war or is it who did raise or could have raised as with regard to this problem i believe that we would only be deployed on the on the basis of including you that were put forth in the lower finality that changes things in the ground between in terms of the could have been reception completed it may not have been decided by the district judge and so perhaps it remains available to be raised again in a subsequent series but if it's not mentioned the thought although it could have been then aren't we going in a direction that i think the cases take us strongly against you can say well going to raise this issue in this case but never mind the fish to me again especially if it's a difference in the deep pockets of the parties and all the rest of it then i'm going to raise another issue and put you through another several years of litigation and i think the thing could have been raised is a very important aspect to be considered now whether in fact your clearing is they were sufficiently general so that cover the could but that too i think the fact that it was decided on summary judgment on one issue is certainly significant but as to what else might could have been raised even though not  suspect in the overall again to tell you the circumstances don't you yes i agree with that too i think so simply let me try to see if i understand your argument maybe your argument is even if th be well if you don't a prior art search at this point in time you could have found this or you know w patents or prior art that right now listen the face of the pattern itself but if there was in your possession i can see it could have been raised but if there wasn't any a possession could have been in your possession because you could have done a search after all you were charged with patent infringement perhaps you calhoun's thank you i have four points i want to get to here real quick first there was a discussion as to whether or not the standard of review for a prevailing party determination should change based on whether or not the judgment below is mixed whether or not on side got some relief from the other side got some relief too and therefore now we do in some sort of a way because i prefer the court to shun which is a federal circuit case in that case the court did a wayne analysis where the plaintiff prevailed f substantial judgment on a turn on a patent infringement claim and the defendant received some relief there the court applied to novo standard of review even in that situation and second there was an argument made that some for some reason issue preclusion or collateral stoppel can't apply here because this case didn't go all the way to trial that this was a summary judgment will win and therefore creative compound should be a stopped for any reason  this was not a quick strike summary judgment motion this was a summary judgment judgment motion that was filed after the close of discovery where all the decisions should have been before the court and to the extent that creative compounds wanted to take discovery or extend the creative compounds at other arguments as to why the pad will be invalid it should have already raised them so therefore in my view this is the classic example of creative compounds having an opportunity to raise any argument that it wanted to as to blog my last point and then i'll take more questions there was a question as to whether or not the district court has already determined this case is an exceptional and i went through the court's order said here on the lat on the decision on prevailing party and this is the quote as stated whether plaintiffs are the prevailing party from i'm sorry but this is the last page of the court's order  mildred's no mildred's or mining and then the court continues therefore because plaintiffs are not the prevailing party court and should be the court does not need to address whether plaintiff's claims tourney's fees are reasonable whether this is an exceptional case and whether plaintiffs are titled anything else i cut it off there you know i think we'd like the opportunity to go back before the court and find out what his conclusion is as to exceptionality we believe that the conduct below