argument about fees that you just began with about that damages claim what what did you explain either here or to the district court about what you would have done differently goes up when the mountain controversy goes up and here we have a very solid effect from a very real effect where that talk to use the two hundred million dollars claim to a certain yes the a state of the individual defendant in this case the former c e o and that prevented distribution of the estate proceeds so it had a very real effect on this case not just the hypothetical and that that claim itself  because it was completely baseless i'm sorry one of the things you say is eventual in med talk recognize that it's its claims were completely baseless that it did eventually least as likely that that never talked in proceed because it was broke no your honor because mr mcandrews at the status conference said to the court that they could if they were truly broke and wanted to dispose of the case they could have withdrawn the two hundred million dollar a claim so that the estate could proceed they could have told the court that we're not going to proceed with this case and  let's not have to bother with discovery or expert reports or remaining trial prep and let us decide there's wind on this case instead it proposes a schedule that required natural jack to continue as if this is the two hundred million dollar case and continue with discovery throughout the period of time until the last very last minute when i met talk finally dismissed the case of its own corp and so so instead of acting in good faith they required us to to get ready for these depositions cancel them at the last moment required us to prepare expert reports is this is how much of what you are now describing took place between this and the first twenty four to claim construction and the final dismissal on february twenty seventh it spam both both periods your honor it's that started the beginning of the case and it went through through even through until the end of the case there was never any let up what's the breakdown for both taking the positions of their witnesses and in preparing our witnesses and in this in that case as well and that's hawke never took any technical witnesses depositions of or even notice them of our our  then we asked them to dismiss the case and they wouldn't and then they continued throughout january and february and they never withdrew their two hundred million dollar claims he can i just double check something you didn't go to the district court after the december first twenty fourteen claim construction order and say there are a bunch of discovery deadlines coming up there's a lot of work that's going to have to take place in the next couple of months it sure looks like this case has to  had no choice but to continue to press for it and instead of relenting lots i said let's talk and continued to press its claims continue to ask for more deadlines for discovery and trial and seven seven what it should have done which is dismissed card which meant that it did not have an internet connection provided by the cia and that that's talking there were addressed as limitation in the court below the district court waited only to say that it was standing alone not understood that if you divide this case put aside the damages question which i know you don't want to do but be divided between december first twenty fourteen before and after and before the question is was it clear enough before the december first clean construction that they absolutely couldn't win that it was just the responsible for them to proceed and the december first claim construction was not on this element was on and is on another element so as to this element your theory must be the words alone of the claim and construed and i gather not even the subject of a request of claim construction a threat make it really really clear should have made it really really clear to them that your that the kids product wouldn't satisfied and i guess i wanted to say and why is that so clear because i'm the literal word say that the it's who has to provide the internet connection is not just going to provide any connection i don't have to let me i'm not sure what providing means so can you translate that into the technical thing going on here it means that it has  under the highly deferential standard was your internet connection provided by the eighty eight argument presented to the district court your hosen council so you know it was during the two hour oral argument between  to these bad faith litigation tactics just trying to last my colleague a good question about whether or not the eighty eight provides internet connection just by way of proof analogy phone lot of people have samsung galaxy s but we all know what smart phones are this phone can have and it can facilitate in access to the internet internet access connection simply through one of the hotspots the court of appeals for the federal circuit as i'm sure that all your honors may have tablets you certainly have smartphones and when you're on the premises the phone isn't what's facilitat hasn't even that good what's plugged into it that that was a good faith argument that was an argument that was made through and through and judge turned off at a lot of pointed questions about that it went to the heart of the issue but the issue in  court i'm sorry your honor it was twenty fourteen i'm doing the math in my head that's that's absolutely right the summer first of twenty fourteen it was a negative claim construction my clients didn't like it i didn't like it but i didn't get to know about it because at the time that talk didn't have counsel or head into the holiday season it's the summer first judge gale graciously gave my client a month until the new year phone for the first time introducing myself to my colleague mr wall in the first thing i said is let's talk about stipulating to dismissal and entry of judgment of not infringement my thought at the time i was still reviewing the record i've just been hired let's take a look at the not infringement issue does it make sense then to appeal unfortunately not just about three weeks after that i went in for cervical spine surgery and that that interrupted our our march toward getting this case resolved and this mess unfortunately i said at the time i think i said it in the records in the submissions i have never in twenty three years of practice and counter to the fun and who wanted the last to be dismissed from the case but i found in the instance of magic jack i asked for a stipulation for thirty day stay and a my surgery and my recovery which is actually pretty it's pretty quick recovery for cervical spine they denied that i had to go to judge gayle's and he granted the thirty day extension and i think your honour's will see from the time line from the time that that negative claim construction came down where it was clear to me there could not be infringement under the court's instruction mr  that it took me a while the familiarize myself with the record the arguments that have been made the parties briefing the lake the oral argument transcript not on the two eighty five hearing but earlier on the on the  destruction was that was there discussion in the period after december first twenty fourteen about two different kinds of  judgments that would result from a conclusion that you can't win under that claim construction one is dismiss the case the other is judgement for them but you have a right to appeal the claim construction that there weren't around when it was syria a in this order first the first thing i proposed mr who was the concept of a dismissal a stipulation of not infringement with the thought that we would then appeal we would have the right to appeal which by the submissions we could of appeal in good faith my clients made an economic decision counseled by their new legal team that with all the additional language  this is the second best argument about that kind of thing that i've heard when i was at the court of international trade i had counsel who said i went in for minor surgery and i fully expected to cure this on monday morning particularly when we're talking about two eighty five we still have a vestige of brooks furniture and in the cloud of bad faith right and and willful conduct the conduct of the parties in the motivations of the parties matter but the conduct of counsel matters too and that's a handshake that's a two way street i was flabbergasted when i asked for that extension and i didn't get it the court room taken can i take you back to the previous simpler first twenty fourteen world which i jack's point is it is self evident that for that to be so the analog telephone but after has to have internet formatted packets passed through it  try to correct me if i've missed and misunderstood and that it's perfectly clear that the accused magic jack device doesn't have internet formatted packets  pass through it and that i think their theory or their argument is you never had any ground for any reasonable ground for having a different understanding of what it means to provide an internet  are no internet packets exchanged back and forth but the legal team and my team when we looked at it said that's not that's not a claim requirement that that constricts the scope of the claim far too much again it goes back to the general concept that if you have if you get in the course of discovery leading up to december first twenty fourteen and maybe maybe the relevant where there did you have what evidence if any experts or otherwise contentions or where anything that said in order for a device this device the accused device to provide an interconnection it does not have to  along it had been their position because that was something i want to know is is this does this facilitate an internet connection and this of course it does it's interact the claim language itself the lake the claim language goes on to talk about the fact in the functionality of an indirect claim so i think one of the things we sat in our our breach of mission of the court is that under their propose construction even though it's not a construction their argument of this internet package thing that the claim on its face wouldn't make any sense because when you get to the portion of the claim that talks about indirect internet connection and  let me let me you have a more tangible example of that if my phone is speaking to that access point the access point has anything that cable plugged into or that's plugged into a switch i that goes off to the internet service provider that access point wife i access point is facilitating the internet connection but without this my colleague and i  can't this is a necessary part of facilitating the internet connection to the use i mean it's not even the strained argument let alone a bad faith argument and it had always been there their position and perhaps in the clarity of hindsight your honor maybe it's something the party should've crystallized on plant construction but i and what i what i believe in what i felt when i reviewed it doesn't matter case that when you add this number of words you're with the patent office is not doing that i believe that that there was in this case and any meaningful question that that there was a substantive difference and so damages couldn't reach back further and then the other is this what mr wu was talking about which is that it has to be the case doesn't it that the made we're running the risk of wading into this circumstantial territory something the council the court counsel against just on the twenty third of the max planck case you were you were on the panel and in the opinion that's what we're talking about here i mean my colleagues citing a plus report of economic survey statistics if they're part of the record they're certainly not we've we've seen it yet ok experience working with x because that's where you hone down in you you we find your your damages theory but in this case i don't think there is any support for the proposition that there is proportiona you grant we didn't granted because they wouldn't remove their two hundred million dollar claim it had a cat had to do that two hundred dollars fine was directly related to your opposing counsel having surgery no well you know a barrel when you see a lawyer already know your honor that that is not the reason that they had they had opportunity first of all they chose mr macandrew as knowing that he had that surgery coming up they also had a local counsel who also wears that in the record it's not just that but late they knew that they must have known there's people don't schedule surgeries on the next day at any rate  they they went and then they and then they kept on growing and they they said they provided a schedule that had us having to do depositions and expert reports and everything else and without any really it real intent of going forward they could if they really have met merit to their claims but that's exactly what they did and the only thing that they average if you deny your opposing counsel's discussion of his initial conversation with you in early january he said he was thinking about it but that thinking and doing are two different things in the meantime we don't we're all on it and a tight discovering a tight schedule to get the case to trial the only thing he said in the case below was that the  i'm thinking about this mission isn't in your client's interest to say hey hold off spending any more of your money we tried to do that and then instead they came back and said let's go forward with these depositions not back the other way as to litigation misconduct we showed how they cancelled depositions at the last minute both as for their witnesses and ours they did the same thing on expert reports and never refuted those facts but just pointed to what happened later snobbery that dispense with the need for taking more depositions or expert reports that they didn't do that they they instead waited until the last minute on each one and then finally this take the case at the very end on a walk away basis with no  with no right of appeal people don't do that if they happen to let me know if there was a period there thank you thank you counsel matters stance in many