your appeal against the costs and fees for your claim and take your best shot i don't think it should take the whole fifteen minutes but all right so it's our position here that the district court should not have found this case to be exceptional under thirty five u s c section two eighty five for purposes of awarding attorneys fees now the record as the district court found it she recognized that there were no allegations of fraud at the patent office or misconduct during the litigation so she looked to federal circuit law namely brooks furniture manufacturing which is in our brief and that provides that absent misconduct in conduct of the litigation or in securing the patent which the district court said that this these factors were absent sanctions may be opposed imposed against the patentee only if one the litigation is brought in subject of bad faith and to the litigation is subjectively baseless and the district court further recognized that both the objective and subjective prongs of brooks furniture needed to be established not just one you needed both and you needed to establish that by clear and convincing evidence so how is that different from the supreme court saying that abuse of discretion standard applies to all aspects of the district court's determination i think the way it works in patent cases you have to find the case exceptional first and i believe that's a clearly erroneous standard and then the standard for actually awarding attorneys fees is abuse of discretion so you think the the the quote that i had from the high mark case which does say to all aspects you think that should should really mean all aspects after you determine exceptionality that's what i would say but go ahead and now at the federal circuit recognizes  assert infringement of this design patent for a balloon sealing device the council go into a case management conference and mr weber says well the device you're accusing of infringement we've been selling for four years prior to your patent it's prior art and to the extent you're saying we infringe we came first in time so having heard that  counsel at the case management conference for creative said show us the catalog depicting this device that goes back four years and we were advised that we would get a copy of that catalog accounts my co counsel here followed up and asked for a copy of that catalog and finally one of our lawyers drove to akron to see that catalog so and once he  the the answer was no we offered to file a motion to dismiss the counter claim and asked them to join and they would not and then they filed a after the after the after the answer was there a claim in this case of fraud on the pad no there what that no there wasn't and the court found that there was a if we assume this if we assume that wasn't even a claim on fraud in the patent office my concern in this case from having handled patent cases as a district judge is that parties are always fighting about prior art is their prior art and if so what does it say so saying a case is exceptional because  infringement action is dismissed or goes away because it's prior art would be seems to me probably a change in the way these cases are usually approached but what seemed to be the genesis of this from the district court standpoint is that the device that you did get the patent on according to the documents looks virtually identical to the one that's in the catalogue the catalogue of stablish is that there was that device in its prior art prior to your case but it also seems to suggest that your guy just simply copied that earlier prior art so his denial of knowing about it seemed to be fanciful at least that's what i gather the district court was was thinking here so why does does that then get it up over the hurdle of exceptional and i think what happened  far as the test that the district court was using from brooks you're absolutely right she said there are subjective faith here because he your client shouldn't known about this and these devices look very similar although they are not identical one has four slots the other has to did she say that she concluded that he did know about it or that he should have known about it i think it was more that he should have known about the in other words he should have done a prior search and didn't and that's what makes it exceptionally well but she did she also said there was no fraud on the patent office so that's one of the things that was confusing about this ruling on the one hand she's saying there's no fraud on the patent office you don't need to disclose this but then on the other hand she's saying well you know what you ought to know about this thing because she did say something along the lines that that she was difficult to accept that someone actively employed would never have seen this and just drew it is kitchen table out of the sphere and but you know when i go back to is even if you say that the subjective standard was matt the you still have to meet the objective standard by clear and convincing evidence and the federal circuit has said part of their case law and i think this isn't b b i lower case is that state of mind  your actions tend to do events cooperation so that's one of her girlhood what one other quick question obviously i don't know a thing about the balloon ceiling field it seems to me that if there's lots of other if there are lots of different ways that people have come up with automatically sealing balloons two of patented one that say that appears to be identical to one that was already in existence is but the flip side of that is if there's really only one way to see all balloons then the fact that you come up with a machine that turns out to look like the earlier one if there isn't any other way to do it doesn't seem to curious much significance do you know whether it's there are multiple ways to seal balloons with machines or whether there are i do not know for a fact i would presume there are but the record was never developed in that respect your honor because we dismissed or at least tried to dismiss these claims as soon as we found out about the prior so you didn't say this is the only way to do it but by the same token they didn't say there are lots of ways to do it and you copied our way  silent on both propositions right i don't do not believe that was their argument thank you thank you can thank you mr weber up on either why it's subjectively baseless or why you have to show why it's not abuse of discretion those are my two questions to get started on why well it is why i did that in their claim was objective leave baseless or if that's necessary and then i had pressed her as is an abuse of discretion the standard for all of that and she denied that so if you have some comeback on that i'm interested but takes both objective way and subjectively basis is that this was a lawsuit that should never there prot this was a pattern that should never have been filed this is just so that you understand we're not talking about a machine we're talking about this cops what are called cops they're sort of funnel shaped and you pull the neck down into the funnel and then you twist it around and you tie it with slide the reason that i was asking your opposing counsel the question that i asked is it seems to me that the discovery of prior art alone and i know you don't say it's alone but the crowd the proposition that the discovery of prayer are alone then justifies attorney fees would be a pretty revolutionary concept in the patent area because almost every patent case both infringement and validity turns on is their prior art and what does it say certainly i agree with you  hundred percent so once we get to that proposition then it's got to be something that there has to be prior art your disk plus something else seems to me right now here what is that something else other than gee they look like they're the same  t they look like they're the same and that's it and it's an exceptional case under thirty five us the two eighty five because this complaint should never have been brought the judge pearson found incredible that that mr polly active in this industry would say he didn't know about this and that is breakfast table without any knowledge that this even terms of your validity argument about fraud on the patent office right but no weekly you claimed it was invalid because of prior it was invalid and didn't but you didn't claim that they defrauded the patent office in connection with obtaining the patent right no and i don't have to well hear this man properly or improperly he got the patent office to issue the patent in the patent examiners as you know  examined the prior art as well this was an patented prior art the patent office wasn't aware of that this was patent that mr polly surely knew about what i'm saying is when you apply for a patent you represent what the prior art is or isn't and the patent office goes through their stuff to see if there's a if there's a  that's similar in this case or whether this prior now they didn't they didn't find your device either right they didn't find their had an examiner right because it wasn't patented prior art they're limited  exclusively limited to patented prior art they would not have found ours but i'll tell you mr pollack found dollars and he didn't tell the patent office about it and he got a patent an there in lies the exceptional case and so from that you say to me don't you don't need to show for it on the patent number at least you don't need to make the claim of from me you know since you're inferring that i believe there was fraud on the patent office you bet your bottom dollar right but the court didn't find that and the question is is that necessary to find that's right and i told him i told him i would let them dismiss the case provided that i was able to see nice fees you know the you know we're talking about family businesses here we don't hire hundred thousand dollar economics experts we don't get involved in proving fraud on the  thing we need to hear on rebuttal ok so i've forgotten what cases they rely upon is their best case to say if there is prayer and it looks like you copied it that makes it an exceptional case so are there any federal circuit or other cases it say that well i mean i think what happened here was the district court said you weren't going after attorneys fees based on a claim of fraud on the patent office and she notes that in your footnote seventeen of their order so she she didn't look at that to figure out if this was an exceptional case she then went to the brooks case that talks about subjective and objective standards and there again we don't believe there's any objective evidence here that would meet that standard we went in with patent and you know as far as the patent examiner why you're not isn't a evidence that your guy says he invented the disk that turns out to be exactly the same as the disk of his principal competitor we would say your honor that goes to the subjective state of mind the objective standard as the port said or you have to look at what happened at the record of the litigation and if you look at the record of the litigation we found out about this and immediately tried to just dismiss the claim so we would say that that test did not meet the objective standard hope me here maybe maybe i'm missing the terms but if the judge sort of finds as a fact that you knew in advance why doesn't that also make it objectively baseless because they're you know because the case law says you don't look at the subjective view of the inventors you look at what happened after the case was filed you're having with your exceptional turns upon not in not having obtained the patent and not even having filed the infringement action but rather whether you acted responsibly after the science what we was how we acted after this litigation was filed and that's what you have once you have the patent and you believe that stands for then you can go ahead and sue on it because you got it and then when we found out there was a defect in the patent or issues with prior art we immediately turned around and dismissed but let me stop you right there if the finding was that you went that was that when you found out at the time you filed that you knew that that existed doesn't that make it objectively baseless i don't know that it does i think that goes to the subjective standard because that goes to what the inventor and as far as the inventor he makes him out to be so he definitely knew there's no evidence of that the judge didn't buy his testimony that there was no evidence that he was a trade shows and he saw catalog otherwise but have got the trade shows for second year in the balloon industry presumably you know how are the products that you're selling are being used in the retail marketplace if nobody's buying these things you're not going to sell it right well is there any evidence in the record as to whether these discs i guess we'll call them were commonly available wherever you go to buy balloons and balloon weights so therefore how could he not know that this product was already in the marketplace here is no evidence like that in the record so although we know it was in a catalog in the catalog would constitute prior are you agree with that that's correct taking it one step further does the record reveal anything about how ubiquitous or rear these devices whether they had ever sold one of these devices in the catalog i am not aware of any evidence like that in the record and in fact the judge's ruling on this was space soley on the client's testimony that she did not buy it he sat down at the kitchen table one night and through this ok no thank you counsel case will be submitted remaining