the infringement and we both in addition to not benefit from if you look at over our overall conduct that the district court did not pay attention you see that we were the party that really acted reasonably we were the party that withdrew claims we had  patent false marking claim early in the case when the statute was amended we withdrew that counterpoint romantic on the other hand made five applications all of which were denied to men to assert that in addition we see th fossil moved for summary judgment when it reasonably believed that it had support and that it could win and narrow the cases for to bro maggie on the other hand made no motions for summary judgment and now comes into the court and says you know all these suggests that they didn't believe that they were so unreasonable previously in addition as you noted and strange and the fact that they were allowed key issues to proceed to trial and didn't go for summary judgment makes it less makes it it's not if it was a situation where with respect to one of our positions actually a position of the willfulness of certain of the retailer defends she said i'm going to deny or jame all but i'm doing it because we want to let the jury try it i'm very skeptical about that position she did not make that qualification with regard to the non infringement position and in fact rome had an issue removed for rule fifty she denied it and then they repeat raise the issue with her and they said judge look we know you denied our rule fifty but we do not think the fossil can make this argument to the jury because it would require them the jury did in permissibly speculate there is no way that the jury could her fossil on that point and the court said well let me hear both sides of evidence on it she listened to both sides on it and then she came to a conclusion about that and she said basically i'm going to let you make that argument ok so this was not a proper prevention grant or denial of a rule fifty sheep six presley went further and said i'm going to allow fossil to make that argument to the jury and she said i'm not persuaded that we have such an absence of testimony of evidence that a jury couldn't conclude even if an expert did not opine that the similarities in the snaps and the district description of how long the stampers used or should be used totally negates the idea that the jury conclude that the plaintiff has not met its burden which is far from saying what the proper weight is to be ported to this so i think that mr cass who's quite possible counsel can make his argument as to what this particular evidence shows and the plaintiff's will now before him to shoot it down i'm not going to preclude it so here we're in a situation where it's now being alleged that we were making an argument that was completely unreasonable when the judge said it's reasonable i'm going to let you make that argument so it's not simply i know she talked in terms of granting it in terms of the stenberg case and she looked at the fact it was a real fifty but if you look to the record the record clearly shows that she went well beyond that and examined the evidence and said you can make this argument keep in mind also that we're talking here in an issue that romantic ha the burden of proof on roe magged had to prove that we infringe and that we use non genuine snaps romig now says it's so clear from certain documents produced by a third party supplier that we didn't use non genuine stamps yet they never moved for summary judgment on that point instead they went to trial they introduced that evidence and they introduced other evidence in order to meet their burden of proof we've been cross examined it we then presented evidence against that how could it be an exceptional case but when they did not move for summary judgment on an issue it was tried they presented the evidence we cross examine that and then we made an argument that the judge said yeah i cured the argument i don't think it's the greatest argument in the world but i'll let you make it how could that be exceptional and that's really what the facts are in this case  an issue you need i'll address that but that's not an issue that this court needs to address because judge arterton found under both octane and the patent act and under the second circuit lanham act precedent that the argument that we're talking about now the argument that the snaps were not genuine the not infringement position she found under both those standards that it was not exceptional so as this a second circuit did recently in a case called pens her first since under either standard she was correct you don't need to get to that issue now if you want to talk about why the lanham actually be interpreted differently certainly if you look at the knoxville case which was cited in octane which was judge ginsburg and judge scalia before they were on the court they put great weight in the fact that that's mentioned but if you look at that judge ginsburg makes clear that the legislative history under the  has a dual standard a standard for prevailing plaintiffs which is this case and the the legislative history says in that case it's only going to be if it's fraud or malice or something more and also if  you're prevailing defendant in an exceptional case you can get it so if you look at the legislative history clearly the supreme court has said if there's a legislative history that suggests a different target cation the normal rule of course being that similar language should be interpreted similarly but if there is a reference in the legislative history and in the senate report there's a statement that deliberate and she isn't that in exceptional cases i e infringement cases where the acts of infringement can be characterized as malicious fraudulent deliberate or willful attorneys fees would be available if then goes on to say as to prevailing defendants in the case of exceptional cases they can get it and judge ginsburg not self says she highlights this differentiation now roll that comes out and says well i even in that case really didn't really means e g but we did have testimony by the commissioner of patents and he says his understanding is that for intent for infringers a prevailing plaintiff's case that group would be permitted from infringers only when the acts on are malicious fraudulent deliberate so we do have record evidence in the legislative history as to exactly for prevailing defendants and prevailing plaintiffs what the congress meant so again i don't think you need to decide that issue because she did decide the report did decide under the path now that the claim that the position she simply found in the exercise her discretion that they did not make it a national case of defendants groundless argument that the stamps of the accused handbags were genuine ok that's the argument they were talking about recall that the infringement the snaps were one entity one device they have the rom a trademark on it and that's why i was a trademark ace and they said that it copied their patent so it was a patent case so the question under both the lanham act and the patent act was are the steps genuine or not and so here at the bottom of four she says they're making this argument we're making the argument that they were they were genuine they're saying the plaintiffs are saying that argument was groundless and if you turn over to the next page she then decides under the patent act the argument could not have been groundless could not have been reasoned and so this is in the context of octane fitness that she's making that determination now we've already discussed why really her but then she argument that the stamps were not genuine is reasonable and therefore does not support an award of fees which i think that's clearly what it reads here i think everybody agrees if she then goes on and says well i'm also going to opinion that she would make this finding not that she did make this she did make the finding under the patent act in this section on page eighty five she said this argument that the stamps were not genuine is not going to support the conclusion that the case was exceptional for purposes of the patent put if she never wrote a word on page eight about the lanham act she could have just said i've already figured out that the only ground that you're asserting sternberger principle that she said that it's not so frivolous or groundless s to justify in a lot of fees so she was expressly saying here this is not an unreasonable argument that they made with respect to the non genuine the subscript i think it is clearly their judge so i'm not asking you to reconstruct or figure out what she says i think that's exactly what you  e just in terms of a couple of things although i think the court has clearly indicated that on in terms of the timing defenses in the withdraw that i think it's clear that judge order to recognize that we have withdrawn them it's not even the case that we need to have withdrawn them in mind that as a panel the judge newman was sitting on the tronic the issue as to whether we didn't withdraw time's up i think the court circumstances and determine whether the case was exceptional so that doesn't tell us as opposing counsel said that actually under any standard judge are to come to the same thing it just tells us that judge roberts and made the same mistake here on the conditional  well with regard only to the infringement issue under the patent that claim and this is at page five of the joint appendix she's asking whether it's frivolous we're groundless that's not the same inquiry that she is conducting with regard to the rest of the issues ok and that's be tried anyway and all the same witnesses all the same facts were going to be brought there for the question of infringement so it was going to accomplish anything to move for summary judgment on the on the infringement question when you still have to have the same trial that went forward after that those sorts of findings knowledge facts not all of which of course appear in the written record are beneath a district court's determination as to whether a case is exceptional this district court did live with the case for many months longer than many full cases in these districts of virginia saw the entire trial all the pretrial all the post trial and came up with this feast decision one week after resolving the post trial motions she knew this case and this court should affirm her exercising