good morning may please the court this is a case about the exceptional case sanctions that were levied against alzheimer's institute of america i'd like to take a minute at the outset that just focus us on a narrow aspect of this this case i think in the briefing what got lost a little bit was that this is not about all of the different reasons why a court might find a case exceptional and i can see that there are many and that many of them are jury should decide if this was right and i think that's what i mean i certainly was one of the points that i was attempting to make that the law ok well that's good that so this is not about litigation misconduct  or ject of unreasonable ness pretty soon investigation of the substance of strength of a party's position all of which the court can determine from things that it sees this was about judge savage finding that hey i knew that when it brought the action that it was not the legal owner of the patents and that in my view is different not only because it's not equitable it's not based on an observation of conduct in the courts presence or the the jury i think that's what highlights the door master where into eighty five does it say that i doesn't say that and to eighty five certainly your honor i think that's where the door master case is important and that's where the court said look the judge can make findings about issues that are subsumed within what the jury decides so long as they're not inconsistent with what the jury decides to do so long as they're consistent not inconsistent but this isn't saying anything about the fact that the judge can't make factual findings all together on a certain issue right in the seventh amendment is the reason the judge can make these findings because if your support for the notion that narrow issue it's not every exercise exceptional case determination but it's a narrow issue because there's this other body i don't know what a narrow issue late is are we going to get into a case by case basis of well this kind of factual issue has to get a jury but this one doesn't  ct seems completely unworkable no it's it's very specific in the national press the case is one that i would point to that says knowledge and intent findings are issues for the jury there for the trier of fact in an infringement suit but not in action well but so these the issue in many of these cases is willful infringement where the jury actually decides the issue of knowledge and intent this is the converse where it's the plaintiff's knowledge  and intent which is not try to the jury not presented any trier of fact and that's why it's a bit of a bit of an exception to the otherwise broad rule where a willful infringers knowledge of intent is presented to the jury here the court decided after a bifurcated trial that had nothing to do with my client's knowledge and intent when it filed suit it's assured that you were allowed on the attorney's motion to introduce any kind of  s from a couple years ago which very graphically sad it is the province of the district for to determine whether he has exceptional are right in in to the extent that the court determines its exceptional based on anything other than a knowledge and intent finding that was never tried and never presented any facts to be taught you can present evidence to the district where the other side can rebut it the district court to make a factual finding on that for purposes of the attorney because the seventh only where that factual finding relates to knowledge and intent and only where that factual that issue was never decided by the finder of fact where will the national presto case makes clear that not says nothing about whether the court is in people and making its own factual findings in an attorney feel for well what it says is that once the jury has examined an issue the court can do something inconsistent with that but this issue hasn't been presented that way before i mean what was unique about that case or not unique what was important about that case is that the issues were presented to the jury and then the court on the basis of a trial that considered those issues found that it was a close call this was a bifurcated trial and standing it evidence about my client's knowledge and intent was excluded and therefore when my client was before the court on this exceptional case motion  know the court could have decided on any number of issues but it decided specifically about making a factual finding that my client knew when it filed suit that it was not the lawful owner of those paths and you know just from a factual perspective i think there are some compelling reasons to take a look at this in the say you know lay people should decide this these are scum plex scientific discoveries my client is not a scientist he had nothing to do with the discoveries these are complex legal issues involving waiver he was represented by counsel at every step of the way both in the underlying haven't had the opportunity for me all those are in this to the district court in the context of the two maybe piracy and the district court didn't believe well what the district court did as it made its own findings is that based on a limited record and my contention we quit saying that record you had the opportunity to put in anything you wanted in the context of that the proceedings well and that's where the seventh amendment comes in the district court didn't rely solely on the trial it took and other evidence as it's supposed to do in an exceptional case the term nation and decided that was exceptional right it made a factual finding a specific fact refining that my client brought suit knowing that its patents were invalid and that was an issue that was never presented to the jury and on which is understand i just he seems to me or fail to sign his single case that says you have a seven commitment right to a jury trial about in the context of an attorney fees i don't think it matters that it's in the context of attorney's fees case in other words if if there's going to be a factual finding about our knowledge and inten ok and it's eight and this is where there's a distinction between the legal and the equitable and between things that are before the court already and then if there's not all of that lying there all fines and factual determinations a district court makes in the context of a two eighty five proceeding reasoning we're going to have to start parsing and saying this is more factual this is more equitable blah blah blah down the line even that that basic timeline of what happened is factual so we have to have another mini jury trial on every instance because it would put the plaintiff in a strategic conundrum where at the same time that they're trying to justify the fact that they filed suit they're defending against an as yet on filed exceptional case motion and it would you know basically trial and standing but that's what up there seven from then are you know because didn't you concede to me that you had the opportunity during the two eighty five for seedings to present any evidence you wanted we certainly had an opportunity to present the evidence but it's a look my client is a is not a scientist he was relying on what the scientists who then turned on him and said that you know this  guy hearty turned on him and said that what he said for years that he was not the inventor was not true my client is not a lawyer you hear now you're arguing merits slide right well no these are these are issues that were never presented any finder of fact judge savage just decided them on his own and that's i mean that's the issue here who keeps saying they were presented to the finder but if we did he did i think it was clear that his decision and if you read his decision it's very clear that his decisions based on the trial record and that's you know that's a situation where he's saying this trial that we had on standing is what convince me that this suit was brought in bad faith but the trial and standing had nothing to do with the brain of the suit and indeed evidence about bringing up the suit such as the fact that it was done on a contingency basis  prior settlements with other companies never came into that that trial but if at least the evidence of the other settlements is in the records like him and somehow you submitted it during the course of the two eighty five proceeding well i don't know that evidence of the other settlements was submitted during the two eighty five proceeding i mean you would have a far different heath if the district court had said somebody filed a motion for attorneys and attempt to the judge is going to do if the judge makes his decision based on litigation misconduct we've got no case it was unclear what basis he was going to make his decision until it came out and then when we get it he makes a factual finding about our intent on an issue that was never presented to any finder of fact even in the two eighty five context and in that way he he denied us due process and violated our seventh amendment right honor may please the court the position advocated by it is wholly without supports in the statute or the case law is seeking something that is simply unprecedented and would contradict what courts have been doing for decades a previously acknowledged at the oral hearing before the district court judge that he could make factual findings regarding the issues of intent and bad faith at that hearing the judge asked the council about evidence regarding effort to deceive the university of south florida and i as counsel told the judge the jury didn't make that factual findings so if anybody is going to have to make that factual finding it would have to be you affectively inviting the district court judge to make factual findings now for the first time in the entire day of this litigation is invoking before this court a seventh amendment right that simply does not exist even in its briefing before this  court acknowledges that in appropriate circumstances the district court may make factual findings including on the issue of subjective bad faith in support of its determination of an exceptional case so again acknowledges that the district court has the power to make factual findings in support of the section two eighty five but determination i took full advantage of that opportunity in the briefing and especially in the oral argument with respect to the two eighty five motion a argued in its brief that it was acting in good faith and as the of the transcript of the attorneys reliance on letters that dr already had written it went on and on about the evidence that it argued showed good faith that evidence was rejected so it was before the court and the court certainly had the opportunity  team fitness and the language of section twenty five and high mark as well really settle the issue section twenty five states that the court in exceptional cases may award a reasonable attorney's fees to the prevailing party  h marks states that of the section twenty five inquiries is generally at heart rooted in factual determination and high marks along with octane states that the district court is the one that needs to make those the determination of the district court and that was higher mark it does not specifically say anything about a jury but it does commit determination to the district court and there's no authority that  addresses any role that the jury has in making the exceptional case determination or the factual findings that underlie that germination and in fact we cited the cases in our brief not in the two eighty five so there's no authority in support of a eyes position and we've cited in our brief authorities that specifically reject that proposition and further state that there is no seventh amendment right to a jury determination of factual issues regarding the exceptional case analysis i'd also point out that there was discussion about how there was not a full trial in this case there was a trial specific judgment of not infringement for example then determines whether the case was exceptional under section twenty five and the court considers factors such as the plaintiff's knowledge of the tweet case and its improper brought suit in subject of bad faith so there's no need for jury determination of these issues and there's certainly no right under the seventh amendment for a jury to address these issues just knew it i'd like to return to the question that you asked which was why would we come forward with affirmative evidence during the briefing about the exceptional case about our bona fides and actually filing suit when that issue was our subject of bad faith in filing suit was never before the court the issues focused on the underlying facts that were tried and that was the debate that was being had judge savage then took that debate and made a finding  issue that was not present that we brought suit in bad faith and i think that putting a plaintiff to the position of defending against that issue before the accusation has ever been made that we brought s puts us in a very difficult position and that's why in this unique circumstance where the issue was never presented to any finder of fact you know a lot of these cases that they cite involve cases where the court heard evidence about subject of bad faith in bringing the soup lack of precision investigation or you know motive and intent to extract settlements those issues were never before judge savage yet on the basis of the record from the underlying trial he reached conclusions about a i a state of mind when it brought suit and that's important because the conclusions and if you read his opinion it's very clear that he's oftentimes imputing mo covered the error by using door master saying i can make findings so long as they're not inconsistent with the jury's findings but that's different than saying you have to be consistent you know the it was clear that he jumped outside of what door master allowed him to do and he made findings that exceeded the scope of the issues that were tried to him and that's where it presented a problem both from a due process perspective because a as was it was decided that we brought in bad faith when the accusation that the suit was brought in bad faith had never been made and b when the issues of ai day's knowledge and intent must be submitted to a jury  the same way the reference to cases where there is no trial at all or or summary judgment often those exceptional case determinations are made because the court determines that the party's position lacked substantive legal strength we had a valid position here it's just that the facts were determined against us recognise that there was evidence on both sides there was evidence that us f wave and evidence that what is that it was not an informed waiver there was that in including evidence from us stuff there was evidence that harvey was a co inventor and there was evidence that he was not a cohen ventre including his own admissions my client as the lay person guided by lawyers the entire time and not savvy and all the complexities of the science he brought his case and he wanted his day in court the issues were decided against him but it was not as though there was no basis at all if the jury had found factually for the other side which was possible summary judgment was the night there was evidence on both sides then we'd be in a different position what's happening here is two eighty five is being turned into a penalty for anyone that loses a case that's decided by a jury now this jury decided the case on standing it did not decide the case on our knowledge and intent when we brought suit and i think that's an important distinction that i'd encourage the court to take a close look at