the only thing exceptional about this case is that we're sitting here today with the district court opinion that found this case exceptional and awarded attorney's fees as a p this is not a case that was filed by best pick  action that invest pick took in this case was to send a notice letter to preserve it statutory rights to force his patent and then to oppose a motion for judgment on the pleadings that his patent was invalid under section one of the law but look you had a district court the nd set of deference all that occurred post final judgement so i believe that this court has held that in under those circumstances let's deference is warranted but i agree that you do a deficit that's fine and let's look at the facts that underpin those findings so that the problem here is what district court held is invest pic was specifically warned by the us p t o it looked very unlikely that these claims were directed toward patentable subject matter very likely that claims were invalid as from our appendix nineteen in there bit of lip service to say that this is not necessarily the case but then he says because you were warned by the u s p t o your dentist was not until i'm sick of a little bit of lip service i guess is what struck me as affectively saying i'm i will actually presume that the patent so i didn't see anything i didn't see any problem with what the district court said with respect to burdens i think that what there were two things that i guess struck me  about the district court opinion that one is there's no discussion in this opinion about the merits weakness of your eligibility view correct and then  the district court found that the conduct of mr miller and mr vander with respect to dealing with the s a p salesman was i don't know stood out i don't remember a specification of what was wrong with the contract also correct so i just vocals yes so while i agree that the district court pays lip service to the burden and appears to put it in the right place the problem is that application of the verb he then says that the u s p t o warning created a serious cloud in the claims and invest picked had to address before in forcing yeah but wait a minute he went on and he said one of the reasons that the court found this case exceptional was against invest fix and usually we validity position under one all want the federal circuit has affirmed the courts one no one invalidity took what we did seriously that's correct or a little after the fact i had met that but nevertheless why couldn't a realize what we pointed out and i think the language of the earlier opinion for you guessed it was a pretty weak case so respectfully the honorable judge trying to did not say that our arguments were weak in his opinion upholding the district court's case nor did the district court's original opinion on want to one make any comment on the substance strength of invest picks arguments the language you are reading about the unusually weak billet in position came several years after that initial want to one ruling in the order to determine the amount of fees that were to be determined wasn't made in the exceptional case finding nor the want to one dollar case and that was after extensive briefing on the fact that he had not ruled on substance strengthen the briefing and the additional briefing by investigate the interim so it appears to be him trying to cover his tracks but again absent from that that language that you sent there's still no finding on the substantive strength of our arguments or why do you believe that they are unusually weak going there's no citation even to anywhere in these orders for why it why isn't it enough and then look at the federal circuit its opinion same thing just as a shorthand i view this as on the spectrum of one o one issues a pretty easy way without elaborat address that because honestly i don't know the only clue he gives me is in his exceptional case finding order he points that we should've known that the case that the patent is invalid based on the us p t o s quick note which i would like to read because i think the language is important since that's what everything hinges on it says although neither the examiner nor the board rejected who that's picks claims under thirty five u s c want to learn the director notes that these claims might fail to qualify as patent eligible subject matter under case law that out abstract the idea of a what is an abstract patent can barely serve as a rule of law because the cases on it often contradict each other i mean it is i could put ten patent lawyers in the room we could look at the same patent and we could have probably ten different opinions about it not to disagree d with your point we don't deal with the track we only deal with are no longer entitle to rely on the presumption of the liberty in a case that we did not filed where the defended all we did was defend the validity of our pad so if we're going to move the ball on exceptional cases to work had numerous can no longer defend the validity of this pen the declaratory judgment action quite frankly there's going to be no case this is not exceptional i mean that is so far beyond what any exceptional case finding is ever been made and i don't think that there would be anything that wouldn't qualify under the new view to another point that the district court caution i would probably say let's not engage in that conduct but i would look into it and having done the research i do not believe that there's anything wrong with that conduct in fact there's good public policy reasons to allow you to engage in that type of discovery i mean these are not control group employees these are not can people that have any knowledge of the case is or simply sales people send a huge sales material including the sales prices as they would any other customer you are entitled to that all that information and discovery i can tell d you we weren't getting in discovery and you often don't in these cases there are many ethical pinions it i'm excited in the briefs where they say that discovery under pretense is not prohibited i think it's very notable the judge can cade cited no authority that said this is wrong cited no ethical rule that was violated he said had no rules of the procedure that was violated he just apparently didn't like it now that is impossible as an impossible standard as a litigant to know that you're going to get attorney's fees awarded against you for most notably this issue didn't come up in the case the materials they received were not used in the case there was not a single filing in this case about it as a peace lawyer spent no time on this issue during the case so what is there to compensate for nothing as far as this case is concerned that conduct didn't even happen the only time it came up is when i say peeved filed this motion to get attorney's fees to try to drum up sympathy from the judge by trying to paint us a bad actors and it worked and respectfully i have only two minutes left it was like i just think that we should issue a presidential opinion saying that that kind of conduct shocks the conscience of the court would that be useful for future but not for me here on very much hope that you do not issue that if i don't ask you for the opposite ok but i would say that i do believe there should be some concept of notice that what you are doing is wrong before you get hit with an attorney's feel bored of multiple hundreds or millions of dollars it shouldn't time the district court found the position was weak was not in the fees motion it was in the original want to one dollar decision and that decision the district ward said the claims of the two hundred and ninety one patent are difficult to distinguish is per se not patten eligible and that the claims quote do not contain any substantial limitations of the side since it restrike the abstract idea at issue and quote that's plausibly alleged innovation and the non abstract application realm same cite this court held that we readily conclude that there is nothing in the claims sufficient to remove them from the class of subject matter and eligible for patenting and transform them into an eligible application the law on one on one could not have been clear in this case and the district court did not err in finding that the claims were unusually weak now invest take cites to a number of opinions by courts by judges on this court where they express some concern about the law around what is and is not an abstract idea and in would be athena twelve of this court judges expressed opinions on the their concerns about what falls inside or outside of abstract ideas and none of those opinions does any judge take the the meets and bounds of abstract idea is not fully resolved but there is no case that says that mathematics is potentially not an abstract idea and kate in fact the cases say to the contrary and on this i would find inventor holdings instructive in inventor holdings the patent he made the very same point the patentee before the court this court inventor holdings took the position that the law around abstract idea was too uncertain toward attorney fees and in that case the federal circuit held that while it is sometimes difficult and quote sometimes difficult to analyze pattern eligibility under the framework prescribed by the supreme court in mayo and this court upheld the district court's finding of exceptional cases in inventor holdings the court should do so here just based on the weakness of the one to one argument can i ask you this as i remember at the district court here i did not say that the weakness of the eligibility position was itself a sufficient reason to to award fees to district court i thought pretty conspicuously said these two things together the nd thing being the discovery related conduct that the district court said it's not supposed hypothetically and i feel want to discuss the discovery suppose that i thought that the discovery piece of the district court's ruling was insufficiently supportive could we affirm anyway should we affirm or obliged to say the district court never said i would exercise my discretion to find this exceptional no one no one weakness alone in the district court's opinion the district court address in both province of octane that and separately and if you look at appendix eleven the court held the exceptional case finding was based on the fact that this kit case stands out for the other in both investing litigation position and the manner in which invest pick litigated the case the court went on to say generally invest the week thirty five u s c one o one subject matter eligibility position its notice from the u s p t o on this issue and invest its opportunity to address this issue made invest its litigation position stand out one point one pawn of octane fitness the court went on to say as to invest picks manner of litigating the case the court found generally that the case stands out from others in relation to some pretense self help discovery conducted by keep people at investec so the court made clear that octane fitness has two prongs and the court could find a path a case the court could find a case exceptional under either prong and in this case the court found the case exceptional under both progs can i can i turn to the othe piece now and just ask you what was wrong with the conduct of the environment in discussing s a p s products with the c p s salesperson so turning to the district court decision the district court at appendix five concluded that that lee miller who was the operating manager of invest pick and samir varma who was the inventor and i'm not sure if he was even affiliated with regulus pretended the norm the rule nor the ethics norms the statutory norm something norm that says don't pretend like you know going to the store and need to satisfy your rule eleven analysis and in that context you could certainly buy a product and analyze it and trying to determine whether there is infringement and in fact it's incumbent upon you to do so when it comes to litigation and you know that a party is represented by counsel the rules change we're to see that's what i'm asking where is the rule that says don't do this post filing post initiation of with this was the osha litigation d conduct this was post litigation conduct post litigation and i will say and spritzing i don't i'm nuts sitting here saying i don't think it's wrong but i'm looking for something that says how do i know that it's wrong maybe it isn't wrong or maybe it is but i'm not given any source to look at so it would be wrong had the lawyer conducted the conduct directly as far as the individuals conducting the conduct i'm not aware of an ethical rule that was violated now there doesn't need to be one under octane tennis but i'm not aware of an ethical rule that was violated the judge in this case was considering all of the circumstances which was even though it was the inventor and the operator who conducted the self help discovery that information went directly to the lawyer who then sent a note over to s a p saying if you don't settle this case i'm going to bring these facts before the court so there was something fishy there now was it in direct violation of a rule and then  said to you did you could have been the lawyer what rule would have been directly violated there's ethical rules in the state of texas or state by state dependent but there's ethical rules that say that once you're gauged in litigation if you know the parties represented by counsel you have to deal with counsel you can't go the fact the situation it's additional facts the district court really could rely on to save this case stands out from the others whether or not it reaches the level of an ethical breach that's not clear but the court does not need to decide that it reaches that level in order to find this case exceptional and are opting to us and i will say that that is against the backdrop of earlier communications from and thus to counsel to s and p one of which they threaten millions  attorney fees and then later they brought these facts to s a p saying you know you didn't pay these millions that you know you're not paying millions in attorney fees but now we're going to threaten you with discovering that our principals went into your company and gathered so the district court  making his ruling on that prong of octane fitness considered all of the circumstances ok and based on the fact that the district court found under both the st prong and the nd prong of octane fitness that under either prong this case was an exceptional case we're asking this court to affirm that decision and we're asking this court for firm it as to the full amount of attorney fees that were awarded because it's a district court found but for the fact that invest picked did not heed the p t o his warning but for the fact that they didn't investigate the very cases the county zero cited fluke in alice this case would have never been brought there was certainly activity to say he was considering the patent office and they cut that as well so if you look at the ultimate award it was a fraction of what he was asking for in the st instance i remember right he reduced the lawyers about thirty five percent about have and your honor we are not we are not asking for additional attorney fees we're just asking that this court uphold the finding of the district court i say ok thank you thank you happens has a couple minutes i just have a couple quick points one i would have to respectfully disagree with counsel statement that if i had contacted the s e p salesman that that would be an ethical violation of the rules in texas in most states it's a control group test so when you represent a corporation you don't represent every employee corporation you don't represent the salespeople who have no involvement you represent executives and maybe the general counsel you know the control group is controlling the litigation for and this is a common mistake the defense counsel makes when they say you cannot contact anyone in america and my company without contacting me that is not the law and that is not true and that is what i sa am allowed to contact low level employees who are not a lot involved in litigation and when i want to get in against companies they are not represented by counsel and last counsel has gone to each of them individually and they have hired that counsel as their attorney otherwise they are just people were not involved in the litigation rd party witnesses who might have information about the fact that everyone is entitled to talk to them so i disagree strongly that if i had done the conduct that mr levy mr valma did that it would be unethical violation because it would not be under any state standard that i'm aware of and for sure texas and we have an ethical painting to that effect that was submitted by luis in this case you're arguing i take it that the district judges sent to to these matters was excessive ye so there's a lot of emphasis on an e mail that sent in the heat of a pretty heavily contested litigation lots of things get said both parties claim they're going to win both parties make statement about evidence both parties say they're going to win on summary judgment used was never brought to the district court nor was it ever sent to s a p and to say that we went into the company to get it i mean come on there was conference calls that were held and there was e mails that were sent by us a piece ailes minute attaching powerpoint presentations that should be publicly available that they send every single customer that they're trying to recruit maybe the district court was quietly trying to elevate the behavior bar texas do you think well if he was doing that he should have been explicit about it and it's not really his best and for the supreme court  texas to do not a district not just for a judge educate now that the rules are in place and promulgated by the supreme court of texas not by district court judges so if that is to be the rule that would have to come from that and i don't think it's enough for an exceptional case to be found because a judge just didn't like what you did there needs to be a reason behind it like if it is just subjective judicial opinion that europe that your behavior was wrong and that can elevate a case  exceptional case and there is no guidance to litigants to ever know when they will be subjected to attorneys fees which is that is a substantial punitive damage and i don't think that is what the purpose of two hundred and eighty five dollars is i don't think that's what the law into eighty five is and i think that would be terrible