there can't be a determination of prevailing party which is essential to an award of peace so that as a technical matter if samsung prevails on any of the issues in vacate the final judgment there will have to be a remain and also few words but it's more than simply a technical issue that the magic cam case is the one that i'm relying on for the fact that it can't be a prevailing party without final resolution but there's also a substantive reason for this and that is because necessarily the award of fees relies on the court's assessment of the to tolerate of the circumstances that was true in this case the court cited that they nineteen it's also reflected in this court's precedent such as y finding was based on four different factors some of them certainly are influenced by the strength of samsung's case and for example if we were to win on  obviously reversed notion that objective reasonableness was a single identifiable independent factor but it didn't really enter rate that the substantive strength of the parties litigat honor i think but the fact that the court didn't recognize that is we think actually an independent round for for vacating it and sending it back and saying you need to at least address that significant issue i don't think that it's an independent you know one of two prongs that has to be met but we think the courts have to address it and there was no mention of the fact that we had prevailed on the two nine open and there was no that because the court said i am relying a war and so there were these these four different factors again the court didn't really address the substance the strength of our argument which we think was itself an independent violation that put it that the first factor if i feel word and send it back but as i said as i recall that the judge we say that it was if four groups sectors that pointed toward exceptionality which are substantially if not completely the prevailing no prevailing party but that's not really what we're talking about at this point well your honor i disagree because i think at least in part the fourth factor with respect to samsung's continued infringement if the otu nine patent is not a valid patent and that part is going to be reversed or there's a question as to whether the eight four is a valid patent then our continued infringement of a patent that's not  invalid not valid would be a factor that the court would have to reconsider that was factor for so i think that there can you can't take and isolate the exceptionality finding from what might have to happen on remand and that's really my basic point which is that the fee word both the exceptionality finding and certainly the amount because the court did not apportion at all both of those analyses would be different  contest it by putting on a defense ok against it right and as part of it it was also the jury instruction and the jury instruction that was that mr lee and mr bond had given false testimony about sam mr taylor had conversations with imperium he was trying to see if sam's i was interested and i understand that those should have been produced that's not a question but when the judge said that they gave false testimony about their assessment of imperence hands that was based on the e mails that were disclosed before there was even deposition of those witnesses during discovery so the willfulness minding itself is based on that true premises that are narrower thing would be to say you can't put on a defense or you well assert a particular claim or put on evidence to support a particular claim but it's very different than entering judgment when you are the primary case of a lot of there are cases that say that striking events is can be akin to a dismissal of this instruction which preclude us from making a defense against willfulness amounted to a twenty million dollar sanction twenty million dollars because you take the six plus million and then you double that as part of the traveling so that's another thirteen plus million and then you add the seven plus million of fees that were promised in marge part on the finding of willfulness that's a twenty million dollar sanction it's premised demonstrably not true they were night they have to buy them from the person from an objective perspective it shouldn't just be the cost of doing business for you to copy someone else's patents and then hope that later down the road that you can go through r or something and find it to be invalid when you've we've done that assessment and so maybe a twenty million dollars sanction is exactly what what businesses like this need well your honor i think that the test sanction which amounted to a twenty million dollars sanctions was premised on faulty fact finding he didn't disclose documents that were kept in a different date range than what he remembered it to be and there was no warrants going to have to be vacated because if the court agrees with us on any of the issues and remands for anything because of the absence of a final judgment and we think that the court's determination of exceptionality and its refusal  to allocate the fees etc would all have to be redone on the basis of what is the world when the final judgment is rendered how many of the patents have been knocked out by that time have they won and won a judgment on only one that while we made it the driving factor for years and years the supreme court said no i disagree you're out of obviously it was said you're allowed to consider it but we have never said since i've changed that it has to be the driving for a while at the very least they have to be a prevailing party so that means they have to have want and if they've only one on one and we have one on two that would require a reassessment of whether they were prevailing party would certainly require a reassessment about whether there should be a portion and there would also we think ha finding on section two eighty five here of course the district court found that samsung community they have to you have to be a prevailing party right and if we were to hold either the agree that any change in the in the in the outcome of the case would require that certainly could envision a scenario where it is imperious left with zero damages under the return to the remainder of the reversal that w unable to recover damages for the it's you know imperium would still be the prevailing party here do you think that but why don't we when we have to send it back to the district or to evaluate the question again well respectfully are on of this your court evaluated that question is prevailing farty prevailing party analysis below at pages a nineteen eighteen and a nineteen of your parent who's district court didn't deal with hypotheticals about a different route the district court didn't assess argument in the papers below that samsung was the prevailing party because at the time it had succeeded at the patent office onto the paths but the just the courts and that's because we hadn't well done right final it's a non final determination so i factor in embedded but it because it's mine finally it it's not it doesn't carry great weight that was certainly part of the district court's reasoning but then again under the prevailing party test which immaterial difference in the relationship between artie's if we're left with the eighty four patent only for example in cream and still be entitled to seventy percent of the damages in this case a four point eight million dollar judgment travelled don't show any clear error on the part of the district court the law doesn't require district court to consider the strength or reasonable notice of every c m c defense of course i think fitness overturned the rigid books furniture  reimpose the prong of that task that would require the district work to analyze the objective baseless and this of the parties litigating position at every had a case of post opting in which  now that it's only a consideration and not a required indeed your honor and certainly the university of utah case among others highlights that now but it's a supreme court cases in the copyright area with the koppel provision of the co in the lower court but we have said that litigation inspired defenses are not relevant to willful infringement that in other words the willfulness under the supreme court  has to be assessed pre litigation now while litigation inspired defenses might be relevant to the overall assessment of the news or even the size of the award it doesn't have anything to do with whether it's well right absolutely absolutely or are an end here and i don't counsel for samsung alluded to some potential defense that samsung was going to put on here but there was no evidence in the record that samsung performs any type of investigation understood the context the why those e mails were so critical to our case i asked mr bang who is a united states trained lawyer is a member of the bar of virginia and new jersey i asked him about his deposition did you respond to mr taylor's july twelfth two thousand and twelve e mail he said i don't remember you produce an e mail mid trial that showed he didn't respond to that and he asked mr keillor questions about what does that show his lawn well at the very least patents and in two thousand e mails produced during the middle of the night on the fourth their trial showed that that was absolutely nothing that's just one element the judgments on us all here it do you know does the record sacred mr taylor was he expenses from my recollection your honor and the record establishes that there's nothing in the record showing that samsung terminated the relationship with mr taylor and back his contract rolls over a year after year so mr taylor's far as we from mr bang and others indicated that he has completed deal for samsung and compensated for those deals and that's all that's on the record below so the fact that he wasn't terminated doesn't necessarily mean that samsung had basically closed close the book on its interest in these so there may be other reasons to think it had closed the book but now simply the fact that he continued in his work for samsung because that work i think you just said was e mailing mr taylor after july twelfth two thousand and twelve asking him questions so you know of the continued interest and lack there because samsung told the jury that it determined that our patents were not worth acquiring that they weren't partner what his the significance of whether they were interested or how interested well here are the narrative that samsung told the jury in this this is in our brief was that the patents were worthless that they determined they're worthless they had no patents it goes to the credibility of serious songs witnesses at least three witnesses in the case it certainly goes to copying the allegations of copying that were proven at trial and judge not cited in his order awarding exceptional case witnesses that the judge said had given false testimony testify about aspects of the case other than what you call good faith belief and willfulness well did they testify here's why this patent is invalid for example or something well that samsung claims and some of the testimony from their witnesses claimed that they had found prior art on our path right that i'm not i don't never identified correct they never identified it they never produced an analysis from inside samsung that would support that they never produced the prior art all we got on that was privilege objections they wouldn't disclose any of that and now they've come here and they're they're claiming they had this good faith regard to their claim that this recording word that the strength of their arguments on the eighty four pattern that they presented on appeal and of course that arguments way they never presented that to the district were below these brief never numerous other issues he was cross i cross examined him for a lengthy a minute i'm impeached him on a number of things you can find that in the in the prior appeal appendix a one one nine one three and a one one nine imposed by the district court there was nothing to base that on and indeed they didn't even raise this in their fees briefing i seem short of short of time your honor i'm happy to answer any further questions that the panel may have based not on that assessment at all but soley on misconduct by the party then this court's decision in the rembrandt case from july twenty seventh twenty eight team says that there has to be a relation between the extent of the misconduct and the feel word that's imposes a penalty for that here it's the entirety of their whole case has been the basis of the sanction it doesn't bear any proportion to the alleged misconduct i do want to turn to pages twenty four twenty five of them the lead brief in the few people goes through each of the ten e mails that was disclosed m what do you have any direction for me at there those are the e mails of i think it's entirely understandable that mr bond didn't recall this as part of the discussion it was a year prior that sampson had sa we found some prior art and we don't think they're worth pursuing mr taylor and come back and they said no i'm sorry thanks but no thanks he thought that was the end of it but the same thing for testimony on that prior art things all over the board  the jury was entitled to hear all that but instead what happened is that they had the district judge in the road on the podium say those witnesses lied about their assessment of the appearance patterns and that was based on these ten e mails not one of them has anything to do with that subject and that was if there was anything misleading to the jury it was that statement in the supposed curative instruction but as i said before if there had is a remained on anything