push the court mark fox to be africa maligns computer services to basic issues as the court knows one is the cost issue the prevailing party aspect of it and then the fees issue prevailing part question just like we didn't lose with respect to either version one or two version two we want on summary judgment version one they voluntarily dismissed what they tried out but after the judge made a decision that because you destroyed the computer prevailed on the significant goal their goal was as they say in their brief on page thirty eight thirty nine and forty of their brief they say that they cheat of the significant goal i'll quote of having hope because milan stopped using version one of the mac's back system on which fortunately filed its infringement claim forms quote my client stopped using that version three months before they served for i don't know what they achieved they just continued for three years pursuing version two and then the last one summary judgement so i think it's hard for them to say the fact is what they did is they want they want to be for the service so why do we spend speaking three years arguing about version one that's their intention it's in their brief and that's their position they say that's why they're the proven party because they forced us to stop using version one it forced us to stop using it three months before  a significant issue in litigation you got a presumption of infringement against you as a result of destroying the source code on the may not be a lot of money involved in that but i'm not sure that that has anything to do with if you're within inches as they say to quote them of winning a case it's seems odd to me that that's when you give up usually give up when you lose it in their brief they say they're within inches of winning ready or there was a stipulation of this missile on two eighty five and this court just recently said june eighteenth of this year innovation case that it's not going to calm the record onto it you know for twenty five issues that the provinces really the district court the problem of this cases unfortunate judge poe didn't give objective in litigation here we were sued on to athens the overall objective was to obtain world he's on virtually all of our sales and in addition to obtain a permanent injunction a permanent injunction with respect to our main product and that was based on a patent the seventy four patent that  invalidated in another proceeding so that had nothing to do with this case and what brooks front to tell me how tell me that these always arise in a much larger context than a part of the larger context here is that the judge finds resistance to his discovery orders and that resistance then leads to a finding that certain things were destroyed and and there's a lot of other context here how much do you think we can consider that well your honor i quite restricted by what the judge said which was which was have been saying anything very much he said there's no prevailing party but what we do have this record that shows there's probably a lot there that the judge is concerned about and in his place and read redo the decision right so why can't we take all those things into consideration and and maybe see ourselves as a little perturbed with both parties and believing  it that i think i think to do that you don't need to do very much in other words basically the opposition to the fees motion is about five pages long it's in the it and it's i think more or less in its entirety the entire argument with respect to this concept of think that it's appropriate for the judge just to say that my gut reaction is now oh and for this court then to be bound by that and to just indulge the assumption that well you must have known what he was down it would have said that they did was so terrible here the job should lead to an award of  advertising instead of the product and watch them they watch the game being played they looked at the advertising but it was your complaint they didn't play the game themselves so they got sanctioned for that i believe yes i believe under jr got to do that and i think if they played it they would have seen that their thing he's made no sense at all i think also here very unusually you've got two conflicting infringement claims on on one pattern you're saying your game is one game on a second and they're saying your game is actually two games we also have a situation where they're they're their president is a patent for an expert he knew very well that you've got to actually check the product if you want to make an infringement assertion i think with respect to the seven eight four pattern which is what we focused on specifically there's this extraordinary combination of terms in the claim separate and that a pretty minimal requirement no it's not actually your honor and i think the critical point here is what difference would it mean none in either case particularly with the launch where the c found he had to have the source code to determine whether there was concurrent execution viewing the game would have made no difference whatsoever imagine it's not articulated them in the test and that would have made a difference and they didn't do it that's not what we had here there's nothing we could have done to determine concurrent execution and said dr profanity that it was the best evidence of infringement and that it was destroyed by much now just to pick up on a comment that mr watson and his briefly they did not stop using version one before the last statement is absolutely inaccurate that the record was undisputed that after they got the complaint and the letter that's when they made the changes to the source code they never preserved that evidence and that's why there was a presumption of infringement and by the district court judge i think you have to look at the prevailing party in the context of the cases or all with respect to each party and i think it's important in particular with milan which that there was the courts make it in this finding concerning presumption of frenchmen and they're stopping version one which is why the lawsuit was brought in the first place but they were apparently also have to look at what else was in this case they were permissive counterclaims let's take a look at plan a bigger this suit for intentional interference with contract that was completely unrelated to the case that we brought the suit under the two eight nine patent they sued for trade libel concerning illegality all of these cla law whether it was appropriate and i think that's what you do here i think you look at all of the factors that i just mentioned and you make a determination as to whether there was a we're watching changes that numeric thing fifty one against forty nine percent the record as a whole and just determined whether any party prevailed and in that case that they found that don't party have prevailed and in that case there was competing claims going back and forth and the court found there was no prevailing party and i think that's the same thing we do here you have to look at the case of a whole as a whole look at the claims they brought look at the claims that we brought see what we didn't see what they achieved and on the whole you have a mix back and there's no prevailing party and some kind of law and top position prevail and they looked at the competing claims of both parties in the case as a whole and made the finding that they did it and the best case the stands for the relation of litigation result of the overall objective of litigation and i think that there's competing arguments on both sides with respect to back in again you end up in the same place i think we brief that to the court on our  certainly the cases are helping me there but i think ultimately maybe twenty if i were to answer that specifically i would say eighty twenty it would probably be a case where there would be a prevailing party but again i  that to some extent it was discretionary for the district court to determine that and i agree with that and i think the brooks case raised you know for the first time man at least the other cases that we've looked at to re man because it just means more work if the case can be decide by this court and that some l a i think this is a case where the records are extremely well developed the court can look at the orders it was issued by the court they can look at the all of the record is what elop it is it's in order for the court to make a decision on prevailing party so i don't think this is a circumstance where it needs to go back down that object holds true i think  while with respect to the exceptional case in ruhleben assertions that are being made in this case in our view the record was extremely well on these issues there was orders issued by the district court many of them that relate to these issues and we just think that this is a case where the the court can make that decision itself found in them in the court found there was more that could be done in terms of the pre filing investigation and still found no real lead in this case there was no more to do on the issue of concurrent execution as it relates the extra games during a session bingo game it could not have been more clear with respect to plan to bring back the clock and just look at our summary doesn't mention all of the evidence that was relied upon it was the advertising it was gathered at the trade show there is nothing more that would've been clean from the play of the game so in either circumstance there was a substantial pre filing his client this is just not the type of case at all where there was an insubstantial pre filing and that's it in fact the record is the exact opposite thank you very much said that it was three months i said sir i didn't say so it was during the you know you have an audiotape they filed the complaint on may third they didn't service for three months that's what i said they asked for the source code for the player unit and then they realized that didn't work in terms of just around saying that they couldn't tell anything by playing it well first of all how do you know until you try it watch people play right th said you can't play two games as a version two can't play two games at once i tried with mr brown's associate we went and tried to play the game one question that occurs to and then if you take the deposition of the person the person says that's all along that it is wrong which is what happened in this case they quickly took the deposition of the let's assume that in order for you to reverse engineer the pharmaceutical case i'm talking about a cost a lot of the advertising is enough to get to the jury actually if people have an admission from the other side that their product is constructed this way and them and you might you might might be enough to get to the jury much much less satisfy cept for except for two indisputable facts one is within days of them saying we think you would fridge the software has changed that's one second they deposed the programmers who said that ad is well we need to do that that's well they knew they lose on market this was three years pursuing  ailes made a very critical concession that and that is that this concept of prevailing party is not an all or nothing it is not an all or nothing thing i think he conceded that if you had an eighty twenty situation i guess which means that if if i want eighty percent and i lost twenty percent i'm still a prevailing party i think the only way that you can ever make that kind of an assessment is if you undertake a reasoned analysis of each side's performance in the case that didn't occur here and that was not even presented to the district that's fair i he was not invited to make that in the opposition to the fees motion it's possible that he did it but we can't know that and since it wasn't in the opposition to the fees motion it seems to me the more reasonable inference is that he did not do that and simply engaged  the why didn't he of all people make the most reasoned analysis he said through the entire proceeding and knows everything it happened from beginning to end we're the ones that are guessing here isn't he the one that deserves kind of our respect for having a far greater appreciation of all the factors i think he's the person best positioned to perform that analysis in our view we clearly didn't do that here it's certainly not reflected in his written work product which is obviously i have to write it down i believe that he does your honor i believe that he does for purposes of allowing us to decide whether we're going to accept it or seek review of it and for purposes of permitting this court to understand what he did and to determine whether he proceeded appropriately these are significant issues i think they do have to per i think the innovation technologies case decided in june sixteenth more or less stands for the proposition in other words that that was it that was the reverse situation there the court said we're going to give you fees but essentially just parroted the statute and here that the court did the reverse that it said we're not going to give them to you and just essentially parroted the papers that were before him and i think under twenty five that's not sufficient just to basically say take my word for it i've been here all along and i know what i'm doing i think i think we need more than that thank