that's exactly what they did your own audience some folks are still here if they should really stay because this case presents what may flow i suspect from the resolution of the appeals that were just argue dollars yes that's right your honor and facebook in its motion to have the case dismissed with prejudice when it was pursuing four thousand dollars it inform the district in tennessee the western district we would be deprived our status as prevailing party it would not be able to recover the roughly four thousand dollars in costs that occurred in the case and when the district court dismissed the case as move consistent with judge o'malley's decision in intriguing that that you would put all this time and money into it just as a matter of practicality having having said that even if they thought they needed as missile with prejudice cause as it's right well i think if you look at sirius to see aristide confirmed what a cannon held which is that there is one standard for the determination of the prevailing party and that is the material to ration of the legal relationship of the parties right and that change must be marred by judicial and can it had to do with whether voluntary action on the part of the defendant was sufficient to create prevailing party status right that's right judge there was a rejection of the catalyst theory and buckhannon catalyst theory is the theory by which the defendant taking unilateral action outside of the court order rendering moot case could result in the point of being declared the prevailing part right so that was a very narrow rejection of the catalyst theory right well that was a sufficient rejection of the catalyst theory such that cases that follow buckhannon no longer allow for the coverage of two categories and it seems to me that c r s clearly differentiate between two categories marriage case decisions decisions american decision i've looked through all the cases when you're doing something really unique can you help me understand i would i would love that argument for this unique rd category or i would love to your honor so longer necessary that there be a decision on the merits a decision not on the merits is enough provided however we still have to touch stuff which is the language of c r s t that there is a decision that materially district judge i think would be offended if the district was told district judge you don't decide your cases anymore they're decided by the patent trademark office this should judge decided this case training told there was no and there was no decision to be made let me let me test that one further busy way let's assume hypothetically that the district court had said  i see the motion before me telling me that the p t have as invalidated these claiming and it looks to me like you no longer have a case or claim the other kind of claim legal claim for which relief can be granted by this court and therefore i'm dismissing the case what result well if if if is not a adjudication either on the matter i'm sorry either with prejudice or without prejudice for mood it would be hard for me to answer the question and say what the effect would be in position that facebook's take its position is such that the decision in buckhannon should have been an idjit a decision for the defendant the party that was not seven in which the plaintiff attempted to rely on a catalyst like theory but that would be far before c r s to write it was but what i'll point to is footnote six in which it says that the court read op that obviously if the this decision that did that or what if the judge said that it's moot who did it and to move this decision was simply a reaction to the cancellation of the claims it was the cancellation of the claims by the director judicial decision altering the legal relationship of the parties you agree with that do you should you wrote it let me busy read another sentence the ultimate question is whether apple should be considered prevailing parties  final judgment in your case they'd make a final judgement in your case there is a judgement in the case did he make a final judgement in your case the judge didn't judge entered judgment he concurring opinion of the buckhannon case you may say that facebook prevailed and i have no doubt that their celebration was better than be celebration but there is no prevailing party in the lawsuit and that's just the school leah in the buckhannon concurrent other question whether there's a prevailing party in the lawsuit is a conclusion that we can arrive at but st we have to decide who won in  district court now appellant seems to be trying to draw a distinction about the the later procedural history for those people have final written decisions and the fact is that this court had to look at three final written decisions and ultimately decided end up held to the inflated the challenge that had been brought by microsoft and in so doing did not need to consider the final written decision that was obtained by facebook but the bottom line final written decision it still stands it wasn't vacated this court didn't need to take the time to go through the analysis again because the patent had been invalidated three different ways and this court was able to uphold the st of those ways and not waste its time so but you do have a little bit of an uphill battle here because there are no cases the record point correct avery your honor there are no cases directly on point and you thought you needed something more from this judge well your honor when we went in front of the judge and two thousand and seventeen we did not yet have the benefit of your decision and readier and this court and rainier embraced c s t as the law for when we are determining the issue of whether  colleague what you do need some sort of this will to this position at the district court absolutely your honor and there wasn't one in this case i would argue we did get one here the district court more technically this this should have been a twelve b judgment basically saying they no longer have a claim upon which they would be entitled to really writing that write it which would be a final mean i would direct the court to the supreme court's decision in c r s t n which it listed some different types of claims that could result in they defended being a prevailing party and one of them was the near is an important decision in this this is the same thing as a judgment in which as judge o'malley i think correctly points out the proper disposition in these cases ought to be the simple twelve the successfully rebuffed that claim which is what happened here and as the supreme court said in serious team we need to look at it through a commonsense lens we have a situation where there was an attempt by the appellant to change the legal status between the someone with their hand in the cookie jar but they haven't yet touched the cookie was what we are dealing with here is it facebook being forced to deal with a case inve costs in in dealing with this case and district court facebook took the dispute to the p tab face but came back with a clear victory from the p tab presented this to the district court and at this point the goal of remarrying you see that there is and iteration on what is the exact mechanism for this and c r s t ultimately counseling us that we need to not to put form over substance that we need to apply our common sense that we need to look supreme court has held that it is frequently been reported that federal courts are without power to decide questions that cannot affect the rights of litigants in the case before this is the right case that is if that is what  decisions not on the merits can result in prevailing party status provided however there is still the basics you need a decision that materially alters the legal relationship of the parties and there must be judicial and premature so you need a judicial decision what rice services as well as are a far industries also cited in our group another federal circuit those cases hold that certain decisions although their non merits do not change curiously but don't change at all the legal relationship of the parties in the basics of article three jurisdiction provide that courts can't decide cases where there is no case or controversy so when there is intervening mootness as there was in this case judgement call it was deprived jurisdiction his judgement label judgement on the piece of paper uploaded t wasn't a decision it in a result anything he had no power to resolve anything and that's already been ninety that's north carolina b rocks i've been told by a bird elegant law clerk  west now says rice is no longer good law isn't that weird i think it is weird because i think the statement that rice services has here doesn't turn on whether there's a merits decision or a