again may please the court in the case that is for the court the district court denied two motions for sanctions that were filed against usa it denied two motions to dismiss the inequitable conduct counter claims it denied a motion for a protective order to preclude discovery into the equitable conduct issue it's not a summary judgment motion seeking summary judgment of no referring to the one we just had or not right twenty four fifteen so this is that this is the same case he just issued a subsequent the turnings in order yeah i understand i understand but the point is that we're not supposed to well well so i think the issue is that in in the depositions when mr meehan stat was instructing the witnesses not to answer specific questions and the witnesses stood on those objections and judged umar to the extent he did later concluded that some of those objections were unfounded that would be unethical because that is counsel directing a witness  know but in context john as this is what i would say i don't think that there is a federal circuit case that has addressed this specific issue yet but in the diet go innovations case which is  a district court case from the eastern district of texas that was senior judge bryson sitting by designation the court held that an equitable could it consideration of an equitable conduct can be considered as a part of the overall of a different standard with no you don't have to reopen it at all your honor judge tomorrow having heard the entire one week trial and observed all the witnesses and finding in his opinion  that inference of an equitable conduct was extremely possible even though in his view there was an equally plausible one of incompetence that he can consider that in determining whether an award of attorney somebody asked it is appropriate yes or on this record consider the issues or an equitable conduct and i found that the the the burden wasn't met and bring the fifty to see motions are now let me put that to the side and consider each of these other issues to isolation we think that what the court should have done is consider the totality of the circumstances particularly in light of your of the statements that the court made on the record and it was to not come to a different conclusion the last point that i'll make is a different standard for two eighty five days which is just because it doesn't meet that standard couldn't it still be sufficiently fraud from which to make this an exceptional case no your honor first of all it's very different standing right there since it's not the same as our there a sense is not the same as octane but there is sense laid down the rule you just articulated it has to be the single most reasonable inference and he found that wasn't the case here but let's get back to what happened here it was a failure to claim priority back through a chain of children to the grandparent when we look at the specific intent to deceive there's there's no value to failing to make some priority  your honor what they're relying on for two eighty five thieves is primarily their inequitable conduct claim and for that the judge decided after a five day trial that he couldn't find in their favor no matter what was presented by the pla lawyers from acting as an advocate in a case where the lawyers likely to be a necessary witness i am your honor but let's go to that point it wasn't until the trial judge brought up this question about his limited representation of the prior attorneys that this was even an issue this was the judge's position usa then latched on to that and stated that there was a problem now you heard you heard mr davis state that they decided not to do it because it would interfere with trial but i submit your honor the record reflects that this was a hard fought case below the gloves were off throughout the entire case and that's not reflected on the record when we look at the virginia conflict when but there is no evidence that that happened in this case your honor what they're stating is that for employers who are in a litigation cannot provide legal representation for former employees relating to the factual issues that they have knowledge of that is not the law that is not the case and it is not an ethical violation to provide that when the said representation also what happened during the depositions and also at trial is each of these lawyers testified under penalty of perjury that they did not look at the priority claim they were not asked to look at the interest inventors priority claim of hostility towards people from foreign countries is that right is that's the reference you give me it is your honor it isn't and that was after counsel had asked the following question well english is not the their a sense out accurate already had it presented to him that that's great yes your honor this was fully briefed during multiple motions and in summary judgment and he expressed surprise during trial that he didn't understand the case law and respect to this issue about attorney's fees again it's abuse of discretion there were lying on ineffable conduct as the basis for it as the district court heard five days of hearing the district court or testimony district court determined that there was no there there on this priority issue in getting back to the underlying basis for their attorneys fees claim it comes down to this question of a specific intent to deceive do you agree  happened there is a broad us reasonable interpretation standard at the p t o there is the philips standard that the district court now in a particular filing the c p m counsel unfortunately had errors in one of the articulations of the claim construction when they listed it in other places of the brief it was correct that was the basis for their argument that it was contradictory and that they shifty and shifting that's right your honor but but frankly that was a mistake unfortunately made by counsel during the the agency proceedings and that was fully briefed before the court when it was brought up below in the river a forty nine you say that quote magistrate judge cited thirty six ninety seven where does it say motion practice is thirty six ninety seven your honor i'm not sure it says motions practice and i suspect since you have the record in front of you with me it may not say that but i will say that the context was a motion that the congress here and yes the so the judge was hearing a motion that had been brought and was reflecting on this serial motion practice and the problems that thousand foot level because what this court is being asked to decide is the district court abused its discretion in denying attorney's fees looking at the totality of the circumstances and also that it was abuse of discretion for the district court to decide that there was no specific intent to deceive under the stairs and standard which requires that the most reasonable inference be that there was an intent to deceive the office a specific intent to deceive the office that has not been shown here and whether it's something or you in the west this well we've we've unfortunately honored and been merging the cases together but in essence you know i'm focusing on the attorneys fees and equitable