third case in which will hear our oral arguments this morning is number zero five dash one five four seven highway equipment company versus fico limited and you've reserved five minutes of your time for bob correct that's correct ok start whenever you're ready we have please the court there are two issues that i want to address this morning the first one legislature as amended section three twenty two f seven i was aware that there was an effort underway to amend but i wasn't aware that the amendment had been approved the effort to amend was to address three twenty two f seven to make it clear that the a violation of the chapter is a failure to comply with a provision of this chapter including performing an act prohibited by this chapter or not performing an act required by this chapter and this this was passed in direct response to and with specific reference to this ferry case with the the entity the meekest groups earlier this week and just had gotten not gotten that information so i'm embarrassed to say i was not aware of that fact that was the case i'm a little surprised that you didn't find it and bring it to our attention you know use the certainly think that it helps your or having it but you found your honor as i said earlier i'm embarrassed that i did not know that i think that does help our position and i think that the district court conclusion at three twenty two f seven was a definitional section when clearly the definitional section in the statute said nothing about what was intended by the word violation w history in ohio and iowa there was no legislative history on this statute i think it helps us to the extent it clarifies what the intent was earlier and in response to judge  jury decision to put them in the legislature could have been saying want to things that could have been say we agree that the earlier statute didn't reach this and now that we realize that we want to extend it or it could be say we want to make clear that the original statu was intended to cover this and we don't know which it is i don't think it proves intent for the earlier act i think it tends to see suggest however that the legislature in seeing judge shari's decision felt that  it needed to be addressed and whether it was a clarification or a change i think is is debatable but it seems to me that in direct response to a decision by a magistrate district court judge is more intent rather than changing the statute to cover something that wasn't intended to be cover but we don't know which it's not i would imagine it can be clear on the record what include this terminations and without add and then the question your honor from that is what conclusion can the court reach from the fact that the terminations without cause or without notice is not included in the list and the question then becomes does that sub part of the statute intend to define violation in a limited way and i would suggest to the court that if the legislature intended fine violation in that very limited way they would have included the word violation in the definitional section of the statute failing to do that the i was clear that a were not specially defined contains its or has its normal meaning and i don't know how anyone reading the statute and knowing that the violation knowing that the dealership was terminated without cause and without notice could view that fact as anything but a violation of the statute what should we be deciding this question all in the sense if we were to conclude that this attorney's fees statute isn't applicable here because it only applies to prevailing parties for example and under cam your client wasn't prevailing party and that would end up in dismissing the litigation don't we have cases saying under those circumstances we shouldn't go on the side of pendants they walk line well i think the i mean in other words if you found that the court didn't have jurisdiction to entertain the attorney fees i don't know where the jurisdiction but just statute at least in the context of when the decision was made while there was a federal question for it i think i want to ask you directly this is the i was more question seems not to be an easy we don't have a lot of expertise in iowa law would we be better off dismissing this aspect of the case and allowing you to bring this claim in the iowa well i mean think frankly your honor there is not a lot of expertise that has developed in the i would courts with respect to the statute so i think in judge during his reaching his ruling really didn't have any special capability of deciding the iowa statutory issue that was not a finding of case law that hed evolved around those provisions such that he would be in a better position to decide it than you or that would suggest the state court judge would be in a better position to decide this issue buckhannon core held that in order for there to be a prevailing party under those circumstances that the catalyst theory was not enough that the result order or virtually a reject virtually that same argument there are several cases from this core that talk about the fact and i'm not clear on the right services case but the bridge furniture case for example talks about in order to determine prevailing party you look at the fact of the litigation as a whole and whether the litigation as a well the power mosfet technologies case versus siemens the two hundred two thousand and four case from this core states that the dismissal of a claim with prejudice is in which one party voluntarily dismissed i don't think it was a voluntary the result of a voluntary act but i also think that that ruling was based on something less than a full hearing on the merits and i guess when a plan volunteers to dismiss the case the district court is then faced with the decision of whether to make that did here is dismissing the case with prejudice placed the judicial c o if you will on that result and the fact is the legally the right among the the  conclusively from a judicial standpoint and i think that's the test and buckie and i think that's the test that has been adopted by this court be the exception i must take your into your rebuttal that i'm sorry ron let that legislation and all that and we may have missed it but along with mr kay we were not aware of the fact that the legislature had opted that amended the date that you gave my recollection is that the date it was maybe reported out of committee or considered by the committee but in any of it we're as i stand here today i'm also not aware that the i will legislature a minute be that as it may  it doesn't change you know the argument i respect in this case i don't believe it's retroactive and this court needs to address this on a statute as it was addressed by judge darby  does raise the question as to whether this reflects the intent of the statute as it was originally enacted that section f seven is not an exclusive or exhaustive list but simply a list of violations and i and i agree with that it is to respond judge dyke's question i mean there's no way that this court or any other court can discern the legislative intent because i does not have unlike the federal system we do not have legislative history we do not have question records reports of this nature so we could debate all day what and such amendment shows it does not show  we obviously feel while we're on this point we obviously feel that judge darby was correct in the way he interpreted construed that statute that it's a matter of straight statutory construction he found it not to be ambiguous that the legislature came up with a definite scheme as to how it wanted to address the this relationship as it pertains to this particular industry question your honor because it hit it basically duck tales into our argument that we're strenuously urging this court that there was simply no subject matter stiction for this court to enter the order but the judgment tha it did obviously the ruling on the motion for summary judgment as it pertains to the act is an interlock court ruling no summary judgment is final until it is incorporated into and has become a final judgment that was not done by this court until after we went through this four day hearing on these turn this turning to the issue so when the judgment the final judgment came down i think it was april twenty second or twenty third or whatever that's when that got picked up and became final judgments to appeal so i think there's a real question as to whether or not at that point the court had jurisdiction penna jurisdiction over this as you know subject matter jurisdiction is essential to an article three court once we covered it not to sue there was simply no dispute between these parties the  o was free to manufacture sell do whatever it wanted to do and based on that there was no case or controversy that could support jurisdiction and this cour there cannot be an award of attorney's fees unless the court has jurisdiction of the action and you cite the east senatorial case which we rely on out of the second circuit that when there is no subject matter jurisdiction to proceed with the substantive extinguished the court's jurisdiction over the infringement claim well yes because we had we brought the infringement claim and we covered it not to sue for us in seoul that goes back to the super while our claim goes to because we've we've covered it not to sue they we're not going to sue the defended for infringement so there is no case or controversy between us underlying patent claim that we were making and the underlying counterclaim declaratory judgment counterclaim those we're gone and at that stage there was no the dispute between the parties that could allow an article three court to resolve any controversy at that point the court simply becomes an advisory board and judicial federal judicial power to stop the permit that is our fundamental position but what the court went on to do is to say well but there are some exceptions for attorneys fees and i do have the jurisdiction to continue on and that's where we part company with the district court we think that the hudson kate of this court apply here and even on a subject matter jurisdiction level the case should have been over including the attorneys fees now we also and we think at least we submit to your honor's that this is an area of the law  needs to be addressed and needs to be good enough for us practitioners because there is a split of authority out there the district courts are all over the place as to the ability to deal with attorneys fees after there's been a covenant not sued that's been that's been entertained and it could be of great service to the bar if the court could finally address this because the only thing you're missing or we're missing in the jurisprudence from this court is the fact that you have not specifically applied that to section two eighty five attorneys fees as they say i think that's in case you've applied it to the civil rights you've applied it to the assuming putting aside the subject matter jurisdiction argument it's clear that the judge was wrong in declaring that this was a prevailing party because the judge as you see in the judge garvey for whatever reason just simply said well this is a patent case and i can and did not apply to a patent issue and therefore i'm going to basically ignore buckley and and he goes on to cite in support of his decision to fight a fine of prevailing party he goes on to cite all cases that even allow attorneys fees that the fundamental issue has to be there has to be a change in the legal relationship of the parties now two things on this one this was a partial summary judgment bad judge darby granted that defended as to just certain claims under what one of the devices that they were using it was a partial summary judgment under th in case of this court vonn versus prince of prince of peace i'm not sure i'm pronouncing it correctly you have made clear that there has to be respect secondly the even though the court gave summary partial summary judgment on certain claims he denied summary judgment as to the remaining claims and so therefore nothing to change there was going to be a trial in this lawsuit because there were still remaining claims of infringement that we were making and therefore there had not been any change in the legal relationship of the parties to justify denominating fico is prevailing party and we respectfully it was clearly wrong for the court thank to allow this and we spent four days on this attorney the issues we call ten or twelve witnesses we we spent  ability or anything and that's the problem we as practitioners have with what but what goes on here with the unless this court clears this up because and if i respectfully submit if your ruling is well you know there is an exception for attorney's fees well then this is going to come every time every time somebody decides whether or not to eight thirty till four thirty witnesses cross examination we got into all this stuff about invalidating prior art it was a cumulative or not it was that obvious over this reference or  not all of that we basically tried this case for all practical purposes in the context of attorney a request for attorney's fees after we walked away from this case with a covenant not hudson case for example where you have all this language about unless there's subject matter jurisdiction there's no jurisdiction for attorney's fees he's going to tell you why that happened all those cases were out the outset there was no subject were changing his opinions and he was not giving discretionary authority to decide his opinions but then he retired after he brought the lawsuit he retired and that basically mooted the case and but he he tried to argue well but i've got a claim for attorney fees and and you you address that by saying that even if he had presented a claim for  is of course insufficient to create an article three case of controversy where none exists on the merits of the underlying claim and i submit to you that that same principle should now be formally adopted by this court and apply to a section two eighty five plane because i cannot discern any rational basis to make a distinction between patent attorney fees claims twenty one wants after this litigation started and when the defendant all along was begging for a trial date they were allowed to continue it says we got to the brink of trial a couple times we were ready to go to trial we had invested money in this we had spent money for fees for experts we had gotten our evidence in a manner that was ready for presentation we established the underlying conduct of we felt that given rise to this claim for an equitable conduct the inventor who committed to us that he knew that there was prior are out there that have not been submitted we have the inventor tell us that there was a decision made during the prosecution of the two eight one patent that this our he knew to be material would not be submitted they would let the patent issue and would submit it in a continuation that was what say that i'm sorry hans and say once jurisdiction is gone you prevail in party extensions don't know if there was never jurisdiction to begin in other words if if the case was never subject to subject managers fiction you cannot have jurisdiction to decide the attorney for the issue once jurisdiction vests the court has the right in the duty to decide any a support loses terrorist action the mood can award the simpler prevail the prevailing parties well i don't think it loses jurisdiction in this case and i don't want to i can't cite you any case that would say that if in fact subject matter jurisdiction is lost rise to the attorneys fees is about to count the light in front of the core can be planted just call the party over and say you know what we mean to the patent office and under false pretenses we were given this blunt instrument to go out against a competitor and litigate with that competitor for twenty one months let's say knowing that there was no viable claim knowing that they could never establish a a prevailing position in the district court and then unilaterally simply say this case is over the court can't do anything i think the district court has the right to look at this evidence but that's that's the problem that you can address them in the supreme court may have reached the wrong decision ok but basically the supreme court says that one party decides to give up you can't get attorneys now but can said under the scandalous theory there was not a prevailing party well no i know it wasn't dealing with the issue of jurisdiction right it was dealing with a prevailing party question of a basically it's addressing the abuse that you say this and it's saying well just because somebody gives up on the eve of trial or during trial doesn't mean that the court can award attorneys fees now maybe that's the wrong policy maybe distention should be amended maybe the supreme court is wrong but about cases where there was a consent decree and said that in the case of a consent decree and attorneys fees can be awarded in other words a consent decree further hearings and further litigation and i would suggest to the court the district court could approach that issue in many different ways the court could say will decide based on the papers the court could have a evidentiary hearing if a court aleck's through but it's not thank you the case is submitted