i have the un people do this morning of condensing eight years into fifteen minutes and i'm going to do my best before i start i'd like to give just a little bit of background here unlike many cases that probably come before you this is not an abstraction for me the gentleman who started competitive carbide and i used to be partners in an almost identical business and i have made and designed these tools so i know them inside and out and not only does it give me confidence in my arguments but also the knowledge that what i'm going to talk about is substantially ground so the cost you want to have the trial and the damages would be the cost you spent and having the trial when you're the only one dollar wants to try so no cost the defense cross up to the point where this case  was was some are north of two million fifty thousand well actually that's funny maybe i misread there are a few numbers thrown in but i didn't don't think i saw that initially he said two hundred and forty thousand legal fees and then somehow in your papers here i thought we were up to four hundred pounds and i didn't understand how we accumulated two hundred and fifty thousand legal fees from district court here because the two cases got intertwined and in the damages here and i think we can parse out where case one overlapped case two and case two overlap time case when you see damages are you referring to it when these are attorneys fees distinct that i think the courts are concerned about is when this case was filed and we started defending that we did not have a clue as to the breadth and depth of the an equitable conduct we had just finished defending case one successfully at the summary judgment level with no discovery whatsoever so we thought we were over then this case started and the two cases o because one of the issues that was appealed i honestly don't understand how that answers my question or why it's relevant about this procedural history your argument seems to be  again i ask you which supports that notion because damages for something that is usually awarded or infringement there can be trouble damages poor willful infringement and greta's conduct attorneys fees at least in pa i think the concern we've had is when we started because i said we had no clue what was actually going on behind the scenes and all of this came out of the pardon and yet you cla we learned that the plaintiff some company in case one was well aware of the prior art on the cell bar but they proceeded anyway so we thought it was  going back because of what had happened in case one and the fact that they tried to put the six hundred and sixty back in case one while summary judgment was pending  just got to tell you your brief is full of hyperbolic statements one of which is to call this a real why isn't it kind of surreal if i'm understanding correctly so tell me if i'm not mean well you've been surreal what's your perspective and why are we here and what are we doing but i don't know that it's that company well it is because it isn't it convoluted is wrong word the the whole point is when case number two was filed in case number two was filed the accused device the helmet had to the case law talks about the reexamination ending the case that has to do with a reexamination that was connected with the case i try to think of an analogy but an analogy would be of final judgment whether these were would be considered prevailing party under two hundred and eighty five whether it was exceptional circumstances are all questions that would have been life or the district work you may have lost but you could file a motion for attorney fees why didn't you because we talked a different tack we took a position that we couldn't do that we couldn't go back and really got position is wrong which it is it's why do you think you can file that motion you're now trying to come here and say attorneys fees are damages which is what made this completely different part of the case still alive when it damages rates for that as i think we said about half a dozen times already procedure on this of course what is rule fifty four said in our opinion you may be right i may be wrong but the question was we could not bring that issue to lower court  you be prepared to explain to us why we should not sanction you for at least appeals and then argue i see no basis for this appeal i think it's a colossal waste of the court's time your time and his time and the part court nation web trying behalf of the apple yelling machine engineering i'd like to begin our conversation this morning by providing a little more focused context for assessment of the district court's february two thousand and eighteen decision from which this appeal arises which dismissed all the claims in the case that what i want to do is remind the court that there were two separate and distinct motions that the court was answering in that order the st is an early two thousand and seventeen motion that allied had made under federal civil procedure forty one dollars that sought voluntary dismissal of its infringement claims and the defendant had hearing so that they could proceed to trial on the question of an equitable conduct in that context and we look at the district court's decision it's clear that there's two parts the st is the court we believe probably concluding that because the order is saying that because the counterclaim did not specifically mention attorney's fees and was focused on only on the inability question that there was no reason to move to trial on that and i think the court is exactly right  and eighty five exempts requests for attorneys fees they're under from compliance with the rule of the district court seemed to be leaving the door wide open for the defendant to file such a motion by not entering final judgment even after its issue that we filed a motion to stay and then after that they filed a motion and we had extensive pleadings on whether the stay can be vacated so they wanted to litigate this even though we were saying that we should the reason that the judgment twenty five climb was not a right it was not right because the court said we didn't have the opportunity to raise that claim because we didn't played it initially we took that on face value i don't disagree with language that says you didn't include it in your complaint or something like that because that's certainly no question we want but a language that says and furthermore we prohibit allied because we didn't play that i would concede we had no idea that to eighty five dollars would apply in this case we filed the answer it was only after we got into the discussions and into the depositions and started looking at what was going piece of it and the other the twenty five case twenty five case focuses on the fact that not only was a six hundred and sixteen dollars patent prosecuted with the full knowledge of the prior art but they process you personally and having fired the appeal form he will then of lower court should conduct an entire proceeding on the ethical conduct when virtually nothing has happened to this point he should for all of those proceedings which your client would then be required to pay and also tell you i don't like your shell game with the number of attorney feeds four hundred thousand change that way you were seeking four hundred thousand and change that that was the reason that that was put in there is it still a straight if the reason that the appeal was filed is because our understanding of judge white  that you were prohibited from filing into eighty five dollars motion or the other argument you seem to raise that attorneys fees are part of damages for an equitable conduct because at least on the st part there has to be dozens of cases that say you can file a two hundred and eighty five dollars petition motion after a case is dismissed we didn't i mean you can't just come up here and say because i've asked you if you have a new president and support you research to determine whether there is there is appeal will error there or not if you thought he had prohibited you from filing that motion you probably should have tried protectively file one in an appeal or you could have  were prevented from doing it but you didn't even cite any cases just so that you're doing live you still have to ask for attorney's fees and i think iran may be thinned out of this under the circumstances were just report says we litigated inequitable conduct for no reason other than attorneys fees i think whether or not you're going to get attorneys use is a really open question so that's the situation you're here spending our time and the other side's time or money trying to impress i'm missing something and what's going on to a certain extent you are what work what we were concerned about is from the district court terminated the case because of the external validation all we want of the district court to do with reopen the case and let us go back and have and using resources of the judiciary for no reason other than you should be able to collect in case you win the trenches you incurred in that proceeding what am i missing what we're missing here is has this case gone to trial forget karma and the reexamination our position was we would win and we probably get summary judgment just like we got the case number one and then we get our is what's the other part that i think that's part of it with the on the part i think we're mixing up the conduct of the point of in the case with inexorable conduct because if it's a it was the tail and we were shocked because we didn't think the comrie examination one amounted to anything we followed hundreds and hundreds of pages ok so you were wrong but you should celebrate because  real patent infringement case run up to the point of the karma stay and it wasn't anything remotely like a legitimate an infringement case thank you