david crop two thousand and eleven ten twenty three theory in multiple to spin claims particularly as how that would apply to an agency of the united states government in this case the transportation security administration the t case concerns what's known as t s a a lot of the problems that arisen after nine eleven is the t s a announced that this but we understand ok technology would you mind if i have you look at claymont like me i'm going to make sure i understand the core elements and on it nobody can use that without their permission when you tie that in with the m o you do with the t s a if you don't have commission if you don't have the a dent occasion structures leave the signal if you will the t s a would know what to do and be able to do to do anything so that the trademark is the key of the nexus of how travel centuries able to control the whole situation the last two factors are the the means through the identification structure and through the chinese that they provide that would open they provide the codes that you really the fourth step dozens of the third and that is performed by the t s a people yes so why are we involved here with the whims of an eight hundred pound gorilla we've been in bank case from joining for instance so how can we two sizes case in your favor discretion on whether it's going to use the system or not there's still the contract that the employer still contract because when they do use the system they are following the  whether they they would use it and again because the contract does give them the discretion it does give them the destruction in reality they receive color in order to use it most of not all the time with even  that language means that it holds that such facts would be sufficient but it does not state that they are necessary in other words that there is a ground between the  direction when the t s a follows the m s u which they tell everyone that they are using best efforts to do and advertise on the website that they do but to go over to vicarious liability r liability you have a travel century in the license agreements provides that all the lock manufacturers have their product liability and third we have in the wreck and with the g s a routinely good morning your honors may please the court i think it's useful if i start with the district court's decision on not infringement and in that decision the court correctly found that there was no basis no b to do with respect to those two embark cases that are pending able say i'm an eternal optimist and that the fact that the court's going to argument for this case today i believe that there's at least a fighting chance that the law if it is to be to the record below was that there is in fact no evidence not a single piece of evidence that travel sentry has sufficient control over as your honor pointed out t instructions and contrary to the direction and control of the word direction in that test isn't equivalent to instructions as a court is held repeatedly it is direction i direct you to do this because i have a here an agreement well at the risk of we are doing akamai your honor i think that that is the test because if it isn't to the test this is a perfect example where concerted action for example or some other nebulous test like that would be entirely unfair because again we're talking about a strict liability statute here this is not an inducement or contributor for in for this is direct infringement and it would be entirely inappropriate for independent actors like travel sentry like the consumer like the t s a to be must be vicariously liable for the actions of the person who is being directed and here there is absolutely not a scintilla of evidence that travel century has that type of direction over the travel over the t s a the record is clear that the t performs its luggage treating in the way that it wants to do it in the way that it chooses to do it the only thing that travel century does is provide keys that are used by the c s a an instruction on how to use those keys and i would submit your honour's that that is exactly the situation that this court found immediate action and in fact the district court correctly found that it is precisely the situation that this court helton muni option or not follow the practice that that it does follow and therefore there is nothing in that agreement that would give a talk for travel sentry to sue the government for breaching its because it's best  case to sue the government for it may determine a determination and presumably would make a determination based on national security not to do something or to do something differently than it might have done in the past i think it would be almost operations precisely not to pursue any kind of screening activity it's permitted to do so but the fact that it does in reality do so means that an gauges in actions which allegedly are covered by the passage that's not the point point is that because the m o you doesn't wire the government to perform these steps there is no possibility for trouble century to be vicariously liable for the government's steps i think it's i think that covers the issue of non infringement and for the reasons the district court stated below the there is no basis in this record to find the travel century sufficiently in this case trump knew from the very beginning indeed several years before this case was filed that travel century did not have that necessary directional control and the reason he knew that is because he virtually the same m o you do with the government as trouble century and therefore this is not the type of case where a passenger you would need to engage in discovery or to figure out what exactly is the relationship that would be an argument by hindsight when you look at the case law on good several cases and in particular whether a case is frivolous or not and that's what we're talking about here nothing else whether this case is frivolous you look at the law at the time cases brought in during the court held that in order for direct infringement of a method patent all of the steps must be performed and if an opera formed by a single entity it's inappropriate to combine the steps of independent actors and that's that's the front and across mental case  ecause but even if even if the law was not crystal clear at the time this case was filed that was september of excuse me january two thousand and seven eight months later the mc came out at that point in time the vicarious liability standard was set and wow and it's the third sentence of the decision your honor that was the test at that point in time and mr trump continued to litigate this case for three more years and the law didn't change them when they got more precise but it didn't change going forward case as nothing more than an aspirational expression of joy hope that he has a would make good faith efforts to use travel century long whenever practicable no method no mandated no to specified government program and no contractual obligation was implicated as mr drops own statement what we have here your honour's is a disconnect between the way that the district court correctly found no infringement in its summary judgment decision and then completely treated the law differently a year later in a decision on attorney's fees and that is that's the basis for our assertion that there was an abuse of discretion by the district court on the one hand the district court correctly held that there was no basis in this record and that the m o u was insufficient and indeed it was precisely not close not akin to but precisely the type of situation that was addressed in uni option yet a year later again to test under the mc immunity option is more than just a contract it has to be one in which the contracting party could be vicariously liable for the acts of the other party and for what for reasons that we cannot explain the district court simply changed its application of the law below and of his word and that is the definition of of misapplying the clear law and that is the abuse of discretion here we would submit your honour's that is contrary to what the district court stated once the mc was decided it was in fact a bright line rule and that bright line is factual basis to claims that the accused infringer was was or could be vicariously liable for the acts of the other that is the laws as we see here today and that was the law that  misapplied in denying the attorneys fees to disagree or to fail to even look at the contract and its attorney's fees decision and the way it had certainly in the done infringement decision to to show and to discuss describe why that and will you was nothing more than an aspirational expression joined hope and certainly not the type of arrangement that would make trouble century by carelessly liable a frivolous infringement claim one of those chords case law and the second part of the test is bad faith and clearly under the case law if a patentee knowingly asserts a groundless p and pursues it in in tames it bad faith can be injury and the court simply avoided making that finding because it started out by saying that there was no grounds playing in the first instance because it was thing came out which went and among other items addressed that issue in again the language of muni action the language the control and direction standard is satisfied by carriers liability you will get the standard but that that is not the only thing you can show that it is nice absolutely necessary to show that now we know that question is pending  with vicarious liability that this court had still left open that there could be some other standard that vicarious liability was not the absolute thing but that too does have to prove