the primary error committed by the district court here is that it appears not to have considered an independent independent basis the weakness the substantive weakness don't infer lack of consideration from lack of explanation on the point sometimes reviewing administrative agencies you actually have to give the explanation but particularly when reviewing district courts on discretionary matters we don't infer lack of consideration so don't you really have to be arguing on the assumption that this report considered the point there's only yes respectfully i disagree with the premise the premise is that the law is there's no findings ever required when there's a discretionary decision superior fireplace which a judgment may be familiar with held specifically that there was a lack of sufficient findings to review the decision but to my mind in the wake of halo an op pain and high mark it's more important that we ask of the district courts to express reasoning or findings not in elaborate detail if not called for it's case specific but in order to measure whether discretion is properly used we can't be completely standard  we can't turn these decisions that are very important as the court knows into something that's completely discretionary and no findings are necessary then we would have a lawless situation and halo is very specific about the importance of this court's function i'm a halo a little differently than most people i mean it wasn't just we're devolving power down to the district courts it's well it's discretionary but we learn from the discretion and there's a factual history that's created law common last created and this court is responsible for managing that body of law and plays an important safeguard role that can't be done without state in a findings now i agree that it's  someone files a fees motion we don't need a basis from a district court judge that's they've got busy they've got busy record there's three things here three particular circumstances that i think demand on this record findings as to the substantive weakness of the visitation the first is twenty ten the demand was for one hundred sixty five million dollars from a financially weak japanese company someone came with a big fancy powerpoint and a whole bunch of numbers and a whole business model that said you are under sixty five million dollars ok then they said and patent infringement serious and willful infringement is really serious if you're going to wield a pap like that then you're going to pull like a cheap tent when you face when that company's taken over by mike on a sophisticated american company with a premier legal department and you're going to collapse down to about fifteen million so with a situation where when you end up with a demand like that and you're saying that there was a basis of exposure that you thought you get one hundred sixty five million dollars from there's a problem that's a red flag red flag number two in the ones that are being made now in the brief and where you're headed and this is an abuse of discretion standard we have seems to me you have to present something different the argument has to be styled as an appellate argument and here it is because it appears there was no independent analysis that the problem is the fact that three expert examiners in the words of the initial court world can't one read you know that the paragraph i think to which you're referring about of six topics seven as i say it's not just that three expert examiners agreed i've actually looked at this explanation well he doesn't then go on to say now let me walk through the explanation in the kind of detail that mit is read brief here but why is it unfair to read that as i'm i'm actually saying there's a colorable argument based on the explanation together with three patent examiners finding it sufficient that's a that's a good inquiry and the answer is one is it's not just that paragraph in the following paragraph is at least doubtful that there's a problem where three expert examiners so he goes back to it again there's no statement that you look at the i didn't say i looked at the issues and they're fine but i think the most important thing is keep in mind that in this situation when when you when you made your fee argument to the district court it you  i can easily read this paragraph this page seven paragraph as a response to that saying you know if that's the game you want to play there's something on the other side at that proxy level we did and i think the answer is and it should have been considered and should the export greater resistance add the contacts to the fuse that that would prevent the electricity from going out to the contacts that's exactly what the japanese reference says japanese reference as you put greater a greater resistance t contacts and that works better it's the invention it's in there's no no two ways around it now it says and to accomplish that used three different materials hunks in titanium damon i tried in their export to they they apply constant not as a joke as a japanese reference say you can use any one of those materials and all yes absolutely undisputed there's no question about that there is it said there's three different details you can use to and this is where their argument is so weak they start tripping over their own shoelaces ok and i mean this is serious way their argument as to why they didn't disclose to the patent office these if they came in which would clearly be the resistance that at the contacts that you that you would need to meet the claims was because it's to resist it who in their right mind would put in a circuit something so resistant that you wouldn't have energy you know it would be so resistant people would like it because it would be a real good when pass the energy seems to resist it and so they just excluded it didn't mention it to the patent office when he eventually is using high the resistive material is the contact ok so going to the patent office and there's three material suggested and using one and ignoring the other two and they have to make weight arguments to why the other two will satisfy not that it's not ten times more section eight about eight times more  you know in high gear by the japanese references we want to use materials that have grain to resist resistance here to avoid problems with the electricity traveling out use these they're highly resistive and they said well you won't use those there to resist that's the argument you kidding and that it was but it was an argument here's my daughter here's my problem because as judge read up pointed out that's the standard of review parties fought about these things for quite a while it seems to me this is a sort of garden variety normal at an infringement living different strategies were employed  back to at an office with ex parte etc that's that's what adn attorneys do so and yes you have arguments about well the infringement you know that's that's a clear argument the other side i'm sure it's going to say no it's not clear at all the same thing on until it is now we've got to take a look and say well the district court again in this post where we're giving them this untethered discretion is not even the rules that this court has made are all gone to put findings now on i'm an independent investigation on the weakness with the red flags that are here the sleight of hand on  const in the drop down from one hundred sixty million to a pittance these different things and to ask them to make a fight to make sure that he's not just relying on the star power of a next party re exam certificate how i read it the final point i make on  board did that were certainly showed that the patent was probably a properly appellate court was concerned that there may have been a legal path that was stumbled upon and remained it for consideration by the lower tribunals to make sure that that mistake circumstances just a court held a morning hearing and the district court in gauged on the substantive issues of let it all go and points pacific orts the transcript the district court made a they are simply inferring it from part a figure one that's that's the first point to point out the second is with respect to this issue of increased resistance and we're talking we look at the trial transcript at a forty ninety two through ninety six judge seal are being gauges extensively with me regarding the difference between what's  discussion of thermal resistance and what's in the claims of the two to one patent which is thermal resistance per unit length and that c in the two to one patent at eight thirty six and as they're relying very heavily on the p tab instituting the i p r which is on the standard at there's a reasonable likelihood that there ought to be going to prevail so there were heavily reliant on that institution decision and judge sailor rightfully response when considering whether our arguments were exceptionally bad whether they were frivolous on the merits response that well with the same reference before the and should not be subject to a reversal or a rematch in my remaining time here what i'd like to address are the three new substantive arguments on each of the points that they raise in their great brief and each is incorrect and each because micron makes this new argument in the reply brief to argue that figure four does not refute their attempt to combine to rip out parnate figure one which has two never teaches a wider view that it's also about is reducing the length we see that in claim one of core you and in the other claims the dependent claims do not change that all that's carried over from claim want to the dependent claims is the explanation that the comparison between a one and two or even two and three was not the right comparison or something yes this is an already brief at forty five his explanation is the comparison should be thermal energy on the cutting out and and the way he taught that is by having a narrower cut my pad at the connection point to the line so like going from a narrow quite two with the interconnect with because that's the one that matters in terms of going from why to narrow to constraining heat it's the one that happened creates this effect of constraining the heat the thermal energy on the actually think in the autumn fitness decision that's one of the factors we were regarding the merits is for a valid you look to whether it's a frivolous on the merits we're discussing the merits of the argument the i want to get to the other two new there they suggest that the claims of the two to one patent specify a higher of electrical resistance and therefore it would be natural to use titanium or per unit length they're mixing and matching there are confusing thermal resistance which is the resistance to heat flow with electrical resistance which is the resistance to electric flow and the claims or site at the lines are electrically conductive lines and what we're dealing with here are like triple devices memory devices they have to conduct electricity and i submit it was at least which is the relative relevant issue wiley the third new argument they raise this is that page sixteen of their great grief page sixteen of the great grief at the top with regard to the infringement issue there they suggest a new claim construction they may depart from the what they were proposing in their blue brief i propose a new claim construction on page sixteen of the read brief of their to try to reconcile what the beginning language in the claim and the ending language of the claim which they ignored in the blue brief and i propose that now that on the substrate with respect to infringement means that the cutting pat touched connects to the letter the conduct of lines on the surface of the substrate and that they then extend vertically into the substrate the reason that argument doesn't help micron on infringement is that it reads the claims precisely on the accused product which was the elpida product we see that at a four thirty to a four three two if we look at that we see that in the accused product the cut  of one so that the now weighing down to two because two of those two columns means that that's narrow compared to the lines which are broader which is that underneath their argument is if you consider those two stanchions of those two contacts to be part of the one with the contact points of twenty and there's no i don't even think you heard what i consider some technical mumbo jumbo there i don't even think they deny this point in a figure one and figure three work together that it's wider they do work together it's obvious that they do based on the claim it shouldn't really take a lot of effort to figure that out the second problem that so that's that whole issue with simple the were other an issue they tried to make complicated  or the like may be used so they're saying exactly the claim term or right it's this kind of a pellet mumbo jumbo that is why we need a district court to make findings if they're so confident they're right why not have remained i wouldn't call it valid arguments are legitimate arguments not on that one i don't agree i mean but the priority says thermal kind that resistance to claims is thermal resistance same same i just don't i mean i understand it's legitimate advocacy but let's not totally lose it but i guess the point is rather than playing guessing games based on a transcript based on a fifteen minute argument where arguments like that can be made and played with fifteen personified fifteen minute argument here where there are references of like a morning well i mean i think the morning is an exaggeration what i want to say about the transcript is i think you know it's fair to look at it every comment that the judge made his the excerpts that were selected so in whatever number of pages there is about two interchanges or three interchange that he made total but the point remains that maybe some judges listened to the advocates more than others as well we know that's true if you look at my like