settlement discussion regarding fees sense of the word the phrase prevailing party that has nothing to do with the merits of the case as a supreme court clarified and see as r t v so they could have brought the world's best patent lawsuit and could have even one potentially on the and goal of achieving its primary objective which in this case was it is a missile with prejudice and without paying any consideration of the end of course if there was merit in the case we would be hurting it's not something we agreed to do and if the court finds that that language implicitly waves the claim to twenty five dollars then that would be the only route i could see the court going under that and then continued said in this change must be more by judicial imprimatur where do you have that requirement met here in terms of the relationship of the parties changing under the glossy judicial imprimatur i think i saw you had the settlement agreement and then come back into court and the court makes a determination on the thirty thousand dollars point about joint infringement but where where do you have that requirement that i just referred to that here that that would be the court's decision making and the parties contested briefs on the motion to force the settlement  before that motion was adjudicated their legal mission to between the parties was up in the air as far as the contract it who which side won the contract at the time they signed the dotted line and the contract the parties legalization ship changed with respect to the underlying patent dispute and then the court finalized that by analyzing the contract in the siding which side one side lost on the contract dispute name and the contracting your little so agreement that that's enough of a judicial imprimatur yes your honor because of the breath of discretion the court enjoyed and doing so the court could very well not exercise supplemental jurisdiction over the partners so you're saying it's only the discretionary action court in really want this dispute out of the settlement agreement that it could have it could have said no to that question posed by the parties in which event the patent lawsuit would have continued and that legal issues should between the parties would still have been one of the poor from the court's reading  the problem with merits it's a very expensive to get anything on the merits through the court system and in this case it would have been irrational economically for the commerce too but it went very well could have been irrational economically for your friend on the other side to agree to the salmon agreement if your position was we're still going to pursue attorneys  the even if you're correct if we buy what you're saying here it is the parties didn't negotiate their way away the rights return space that doesn't come nearly close to getting you the right to attorney's fees as the prevailing party and as judge pointed out you've got settlement agreements you would agree under but can and are typically not included in terms of the prevailing party case law that was changed arguably by bucket and the only thing they had to distinguish in terms of the precedence was the mocker case right that didn't go to final judgment and they said there will be a kind of cap and it is a narrow exception for consent decree so you're going to have your argument depends on our extending the marker case which is one of the few exceptions to but can and to include not just consent decree but what so how would you characterize it that moment that are partly adjudicated when the judge gets involved what's your rule here because i think you're asking us to modify what the supreme court has told us your honor i would and sort of extending it sort of adding this unique and odd reconsideration that she thinks this is not an exceptional case leaving aside the prevailing party issue that we've been talking about what is your comment on that those are and she made pretty clear that he even if this went back she being the judge familiar with this would say this isn't an exceptional case and of story so we i'm only here to get an opinion from the california court on telling us you're only here to get a seat at the table you recall that you're so you want us to use the judicial system in your colleague she's already decided that even if it weren't prevailing party if you were really party this is not an exceptional case but you're saying since that wasn't technically before her that we just want to go back so she can say that to us yes you are because i can't cite a fact finding she did  them but i don't think that i could we could i didn't decide that we couldn't appeal something that was in a footnote because it wasn't properly presented in order and if i was wrong then my suffers as a result but the judge issued a footnote i decided that that was not that was dicta and the judge said that i don't need to reach that out so i decided that i can appeal it to the federal circuit because the district court said big they're not reaching something so i've been appealed that and if i made that mistake mistake but the judge has given us a pretty good idea of her view on the question of exceptional case there is a good footnotes and there are footnotes this footnote is quite detailed and intense it's not only goes on anon it cites cases it cites docket numbers it says detail there's a lot of cases i've seen where if this footnote were in the body of the opinion no one would say this is not a detailed clear walkthrough of the record is to why this case is not exceptional right so with what is decision on my client's behalf to what would you have hypothetically what would one argue in this case is the differential standard of review on exceptional cases she goes through pretty much what the standards are what the case law is in terms of our brief and we have yet to find absolutely in your group put forth by the congress that really distinguishes the president said in our brief do you know green with his comment about the section c at least section three that where it says each party shall be paid their own legal fees and costs incurred in connection with the lawsuit that that is kept and only to the if plaintiff had if there is a payment that that at the time of drafting the major terms of this contract or the so many agreement the idea was that the determination of that then pending summary judgment motion would be determining factor on which party quote unquote if you will  prevail as i use and tongue in cheek because we all agreed that when that decision came down from the district court of whether or not to grant the issue of the motion for summary judgment that the litigation would end there of the of the justices use the term sugar sniggered are either that's as apropos because that's what and of happening because the reason that big congress would have used the term here literally prevailed are exactly that lip service which is a table and that takes about thirty page so i guess what i don't quite understand is how this is not a silly if it's  frivolous appeal because there is no basis or at least there's no precedent in which this court which is congress can point to as giving it the right to see took to get from start to finish was a lot cheaper than fighting the case on the merits we consider spending you've already conceded the took unfair an mediation we did not alert them that they were not negotiating for a pretty any protection from section two hundred and eighty five and that they were not closing the door on i would respond saying this is objectionable but i think what you want is this document or this information if it's not in the moment i expect at least some animals standard complian honor and in essence when we go to mediation i don't think good writing insurance policies for the other side and again we have not established this case is exceptional and we just want of the table for whether or not to the extent you're making a policy argument about how settlements your court should encourage or whatever you might go back to canada because that was the argument i as i recall made by the dissent in that case and that was a very controversial case when it issue because that was the argument well you're just discouraging people from settlements supreme court rejected that argument ok thank you thank you both sides the case