middle of those in which it had both granted and or not motions under section two eighty five you know there's got to be a boundary line somewhere even if the boundary line is that i don't know the five percent addition to calling the case fairly close to the court placed it in the middle and wherever the boundary line exists it isn't in the member after all the case in the middle it does not stand out so there are two aspects to what the district court said in that regard but in this situation not only did the court place the case in the middle of the court may not support finding the litigation misconduct in the district court there were two points that were made by jaguar land rover regarding the motivation of the plaintive for the amendment of contentions that the district court eventually reject first jaguar land rover claimed that what occurred that what happened was the filing of multiple lawsuits for the the second case file so that accusation was false after that was pointed out jaguar land rover turned to a second there are and it's a common in this court isn't countered or in various cases you just discussing namely that the attempt to add seven vehicles right near the end of discovery was a bad thing and then quite separately that the claim construction position on which you the second thing is right well there's two reasons your honor and first of all that's one of the other problems that point the point that the district court did found to be wanting that was not what the t's position turned on so that's that's that's an issue that well let's let we're a soba talk about that what to answer more directly or the reason that in this case that doesn't work is because of the process the district court fault and of course these matters are committed under high mark to the discretion of the district court it is the district courts obligation to weigh the totality of the circumstances and arrive at a conclusion in this case what the district court did is it step three or three points that were made by jack or one was held unsubstantiated and two were credit but the two were credited were not weighted in a manner that w justify disregarding the error on the misconduct point the court did not say i independently declare the case exceptional because of the claim construction problem that is not the  totality because of the error on litigation misconduct so that's why it's not good enough now in this court judge or landrover doesn't defend the argument argued as a motivation the court didn't say what that was and it it's certainly not evident from the record what the improper motivation might  this was an amendment an infringement contentions to be sure the district court found it late found it to complicate the case too much and struck the amendment  of that kind at that time is hardly something that's from common it happens all the time that parties clean things up as discovery screening to a close indeed in this case the day before jaguar land rover itself amended its invalidity contention so the circumstances do not stand  and the idea that there was a motive it was illegitimate something motivating the plaintiff other than the obvious idea of getting things planed out of adding more potential damages another issue that involved i doublechecked yes or the i'm sorry the when the district court spoke about the improper motivation to the district court say that it is the attempt to amend the two thousand and twelve case to include b s that was improperly motivated or did the dischord bad that it was also improperly motivated to file the second lawsuit on the seven extra vehicles the review order is addressing the second lawsuit i think it was very specific to explained to the court decided it was and that's more or less what the court had decided when it struck the contentions the argument had then some of the vehicles were available on the internet a long time ago  others were disclosed in discovery five months ahead of time and all the court said was that the circumstances strongly support an inference of illegitimate motivation not saying what that motivation might have been and without pointing to anything different from what was argued by jaguar lender and again as the case then stood after jack where a land rover abandoned its first  you should deny and to suppression at least summary judgment of anticipation it even if you agree with us only on the full screen part but disagree with us on the formatting part of it seemed to me that he made  reasonable construction i did not see you in van seeing that argument as a grant for opposing the summary judgment in which case it seems to me it was fair for the district court  since you relied on a formatting piece and that was utterly meritless forward for your victory that the whole case was exception well i think there's a couple points earned and your honor we do also argue that that was not early meritless we've emphasized in our briefs in this court that the purpose of the invention that obviously does require some sort of formatting but at the time the summary judgment there wasn't as specific analogous an argument as you're describing but there's nothing inconsistent with the arguments that were me and something the places that they're explicitly on the footing it's now placed in the context of the rulings made by the trial court but but as we see as we discussed earlier even the idea that that determination on that aspect of the construction would not be disturbed given the process t a cork i'd like to start with your honor's question to my friends regarding what they didn't and argue below because i think that is a crucial point and the unequivocal answer is they did not attempt to distinguish the mercedes two thousand one prior  based on this notion of a full screen image and you can see this very clearly at a fourteen zero two fourteen zero four which is their summary judgment argument for opposing anticipation and as your honor alluded to there is nothing whatsoever in their distinguishing a prior art on that's that basis they did mention those worms earlier in their paper but that was not the basis we can see this again at the summary judgment hearing itself at pages a eight hundred eighty seven to eight hundred eighty nine and at that point the district court asked her point blank do you want me to construe that as just a full screen image and counsel answer no it requires something else what we mean by that full screen image is that it has a certain measure of format but the measure of formatting is was unclear and the district court wrestled for several pages of the transcript with counsel trying to get an answer about what do you mean like formatting and ultimately ended up something like stylized fobs was enough and so this reflects actually the position of their expert in advance of summary judgment who said that it must be aesthetically pleasing and they echoed that in their summary judgment papers that was in the experts deposition and so all throughout the summary judgment proceedings that was the only basis on which they attempted to distinguish and as the court found that was not not even close it was merit less it was baseless it can you address the question of how to read  exceptional case of opinion are the two pieces of it intertwined that is the piece that says improper motivation for seeking to amend the complaint just before cause of discovery and support i don't know that the there are words this split say that about that but certainly under this course in cases such as taurus for example in that case the district court had found a baseless infringement position in addition to litigation say that toward fees for the entire litigation for a brief attempt to add some vehicles by amending the complaint that was immediately rejected and the rest of that a geisha as far as i can tell is wholly unaffected that particularly the claim construction and what the district court said is as of october of two thousand and thirteen which is when the i g responded to an inner auditory and said the the mercedes does not practice pages on it or teach the pages limitation district courts atlanta at that point you knew you were on quote full notice the district court said it a forty one that this was a baseless claim and so in that context what you actually should have done was stop right that so it's a but so far has none of that has anything to do with amending the complain i respectfully disagree and i think that all feeds into the background of what made the amendment attempt improper so in that context after not not only not withdrawing the complaint if you doubled down and we saw that in the attempt to add seven new vehicles which would dramatically increase that it wasn't just that it was late and should be filed in another suit is that yet you missed its opportunity to include those in the earlier suit and so when the district court awarded fees it again wasn't predominantly based on that amendment it looked from october of two thousand and thirteen all the way through the end of the litigation and throughout that entire time the baseless claims persist that was the key to the district court's feel or whether they were able to add or not the fact that they attempted to do that was additional bolstering of their bad faith in the litigation and what octane fitness teaches us is that the baseless n'est of the position can itself be evidence of bad faith and i think that would be the case here and that was only supplemented when they attempted at the last minute to add seven more dramatically increasing exposure adding seven more baseless claims to one already ut unless the court has additional questions thank you the court is not the side of that the i t had double down what the court decided is that there was an illegitimate motive for the amendment there is no evidence to justify that and by the way when the the significance of the illegitimate motives that it found it said at times on page thirty one of the appendix at times the ickes motives were illegitimate not at all times not from the beginning of the case and not as counsel said throughout that was it it was that brief period of time that judge straw to match now the idea that the court predominantly relied on one ground or the other one other point one important difference between the theoretical idea about what octane would allow and the argument that one claim construction in some cases has been held sufficient there's a big difference between this case and those cases in this case the core of the construction was not found to be unreasonable so whatever might happen theoretically when one claim construction is bad is not controlling here but the real problem is that the court made an unjustified finding and illegitimate motive during a brief period of time and that above everything else requires reverse thank you thank you