we have four arguments this morning pair and then two separate cases will begin with number fifteen and fifteen hundred a man keys if i've got that right  justification for having dropped the direct infringement claim until the law changed under the supreme court more than the supreme after the supreme court's holding in acclimating i believe i appropriate to my right also that the district court did not think that you had waived a direct infringement theory by that period full stop well it was for your own we had we had advocated that our multi  infringement or divided infringement should proceed under two somebody one day our theory at the time was that it should proceed under concerted action or actions in concert theory from the restatement second of towards obviously without having had the language of our august on opinion in front of you which you couldn't have had you could not really have made it factual allegations that closely tra more principles of tort liability so you go and forget whether it was you personally or one of your counsel sent an e mail saying you know the other side you're correct we do not have a direct interest in theory right w that think the only thing that puzzles me a little bit is that a month before six weeks before the february twenty eighth amendment to the complaint and i guess the march seventh amendment in the other case the supreme court had option might have been too narrow so after the court the supreme court granted certain it seemed to me that the possibility of a direct infringement theory became more significant of theories of liability between counsel and the requirements of noticeably particularly at that time for infringement in this course holdings that that for liability for enter found in the amended complaint has wasn't an express allegation of inducement to do we do we have precedent on the question of whether a complaint that asserts infringement under two seventy one and doesn't get any more specific procedural question when and i guess in august of twenty fourteen the district court said i now want to hear the defendant's motion to dismiss infringement after waiting to see it in june the supreme court decided line by the court the district court then waited to see whether we were going to hear the matter on back or send it to a panel we sent it to a panel and at that point i think it was in a district court said ok let's let's get going now we're no longer going to stay proceedings in the motion that the defendants filed or orally did they argue that you had waved a district a direct this is david you have a kind of unhelpful change of waddle along the way that yes your honor but we don't think it really makes a difference in this case and i want to pick up on the question that your honor asked mr miller about what facts he's now contending he could plead that we need the legal standard under this court's on my decision an act of i or any of the other theories that this court has recognized recognize for joint infringement and i think it's important make claims and in fact i think it's telling that what mr miller said in response to just trying to ask questions was that he thinks discovery would tell him some facts that he thinks would support his claim but here he does have to meet the rule twelve gate keeping our parliaments of having possible facts and as we explained in our papers the claims of the five zero three pattern all require in fact they focused on the local movie theat allocating tickets in their inventory between this local inventory and this internet inventory and what mr villars and meant complaint cleaves and the facts that he identified here to your honor's don't what mr mancuso pleads is that the same dando receives money when they sell the tickets online and it receives no money the local theaters keep all the money when the local movie theater sell tickets to lock up customers so the situation is that if the local movie theaters perform the step of the clay method as mr biller and mr make use in the briefing have described it  incentivizing movie theaters to be part of this system right and so i guess on one hand you maybe could read that to mean by inducing them that what they're trying to suggest in there and there's a kernel in there of thought that they're they're willing to confer a benefit onto fandango if and then go joins the system to sell their tickets they do of course they do and in fact that would apply to almost any vendor customer relationship so i think it would it would expand the exception extraordinarily broadly if we were to say w the court the court in the august opinion did not say whether this was this new formulation was of broader narrow application and in particular what we have here is an ongoing interactive relationship which plausibly suggests there must be rules about that relationship coordination rules you you must give me this information in order for me to do this for you not kind of single transaction  closed close transaction processes we're not disagreeing that there's a relationship i think the issue here is that there's no allegation that would support a claim that in that relationship fandango is the mastermind of the movie theaters performing the clean method and there does have to be i think under akamai a relationship between what the alleged infringer is requiring and the steps of the claim go requires the movie theaters to withhold their inventory because for local sales because he knows that that does not make sense and that's not the way this works in the real world obviously we don't have that we don't have a record at this point of that but the fact that he has pled show that that's not possible and you know the concern here is that any cell or business online or any you know situation like this would be potentially liable for whatever it is they're kind of there's maybe doing that might infringe a patent even if they are completely agnostic as to what those customers are doing because right now the plaintiff doesn't know if you know to what degree there probably is a contract between friend and go in and these different movie theaters and you know doesn't know if in doing go is providing a certain kind of software to the movie theater houses that they will install on their local servers in order to you know organize the relationship communication between defending those remote server and movie put in you know we will have to go through a process of dealing with these claims again but there is no as once again there is no evidence and no indication that makes any sense that same day no would be the one telling these movie theaters don't let us sell all your tickets let us make less money don't let us tell your tickets and that is the central feature of history mackie's claimed invention is this idea that at the local vendor gets to control his local inventory and online inventory fandango has no involvement in what these movie theaters do with their local involvement and it's not a part of using fandango system that you either have or don't have a lot of inventory the contracts can you can you tell me anything about the relevant case law about a situation like the present there's a between the time of the district court decision and now there is a significant new formulation of the governing legal standards the pleadings were not written with that in mind the court's opinion was not written with that in mind i don't know for sure but i'm perhaps your arguments in the district court were not geared to that formulation which we were not quoting from something else these were these were it's a new formulation in some meaningful sense what tells us at what point it makes sense for a remained to be made for the litigation to now proceed maybe to summary judgment maybe further maybe not on the application of this new formulation which by its terms is open ended  law has changed post occupied office decision the change in our position it's not substantial and is one that is more of a clarification of the standard moving from what is directional control attribut question and i did so did we did we say in the august opinion that there is directional control joint enterprise full stop nothing more or not we say that no those are two ways plus there may be new facts particular facts that warrant an additional basis but we don't need to get into that here in and and i guess a part of that is did that opinion specifically reject the conser acting in concert theory no i don't believe it rejected the act in concert theory but i think it did take into consideration this court's opinion in judge moore's dissent in the remand back from the supreme court in assessing not just some acting in concert but something over for control so you have to take an additional set up beyond two parties acting together in a contractual or customer relationship and here are these facts specifically for that seat or even further or way from a right case being able to be put on much less was pled at the district court  complaint they did seat works with ticket reseller's the passionate issue here is one directed to inventory control at a venue or a movie theater or a concert venue here there is no inventory control once the tickets are beyond that initial sale and because of that fact and it says specifically professional ticket reseller's that's further step away in this case is far more closely aligned with the orchestra prep technologies case the twenty thirteen federal circuit opinion seven o nine after thirteen forty eight finding no directional control over the accused infri direct and indirect infringement and sent to the case back down for a decision following the aka my twenty twelve decision to reassess induced infringement to seventy one big but ma finding of direct infringement under any multi party theory the facts aligned directly with the case for at least vivid seats where there's this overwhelming incentive site they have no incentive to know they have no benefit they have no overt master mind control over how that is done so this case is even further removed and it's a logical because that was the only thing supportable theory at the time and even that theory and the complaint go back to looking at the complaint fail to allege sufficient facts to support that theory so we're testing this complaint mind you challenged opposing counsel on what is the theory and it wasn't just the e mail exchange it was the joint motion for the stay pending the court's decision aka mine below where it was express this is joint appendix one thirteen so you've got a clear indication that this is a case initially proceeding based upon the original twenty twelve on bop decision federal struck opening up ind for direct infringement so to your earlier question of the trial drove out whether there was waiver we didn't even consider whether there was a claim pled need not necessarily have to arguing with the did am i right that the district guess in your case or the other case that a direct infringement theory had been waived if the court had not used wade and had in fact addressed it on the merits and about three pages of a fairly short opinion strict view after abuse there is an element of this claim that simply cannot under any other theory be attributed to the defendants from the pla far under inducement to seventy five and i mean i realize it would be a little bit hard to anticipate what the formulation of a change in the standard is and then make an argument specifically addressed to that the control of some particular element without quite knowing how to formulate that but i think in part part of part of the series of growth both in the opposition for the first time and also decision at the time of the appeal they pleaded lower court holding in re mandate for deliberations consistent with us to this court in two thousand and fifteen and he was even though if i last year seventy second if there are thirteen and seventy one and appeal at least in part on the issue of an award of attorney fees the panel noted that octane fitness was intervening decision and vacated the lower court holding as it pertains to attorney fees where the reason i ask about that the law fact distinction is if there is a factual or other discretionary determination for the district to make and the this court has decided to address this on a cake case by case actually factually intensive review basis they didn't lay out an overactive overarching parameter for evaluating open