down to a portion of an argument in opposition to trend micro's motion to modify the construction of one term from one of three asserted patents trend microsoft to add the word bulk to the construction of clay nine of the over fifty dollars patent as well as the word frequency to all three constructions and if you know the chart on page eight of our opening brief you will see the differences in the constructions the trend micro motion extensively was made in response to certain testimony from ivy's technical expert dr mcdaniel during trial against a separate defendant symantec the expert testified in accordance with the district court's two year old construction that bulk wasn't within the scope of claimed night he was asked whether that testimony reflected a change of opinion and he said yes now i ve oppose trend micro's motion to modify the construction we argue the motion wasn't pylea we argue that there was no zero to micro issue we also argued a more traditional claim construction argument that the intrinsic evidence didn't support the modified construction but we did al so argue that the expert who wasn't some season testified he was a college professor didn't flip flop we acknowledged his trial testimony and argued how is opinions at trial were consistent with the pretrial record think that is wrong i think the argument was not untenable we cited the record side of the experts part deposition testimony we cited his extra reports the argument made in that part of the argument  based on the record evidence and was intended to show that contrary to the argument this was that this wasn't some significant deviation from the record that prejudice trend micro and cast it into a frenzy of additional work before it's well i think there's just two problems i think number one this is a wrong make twenty five is the wrong mechanism for this case twenty five was not intended to be used to redress five there has to be a pattern of misconduct or misbehavior there has to be a pattern or a course of conduct over some portion of the proceedings  defer to the district court is because the court has lived with a case for a long period of time and you have to look at the litigation decision as the over time this case doesn't stand apart because court found that i v s case overall was not exceptional and that i v did not deliberately plan and execute a reversal of position and there was no ill motivation on ivy's part this is a unique situation where the court lived with the case for four and a half five years and as the court said there's a bunch of litigation and i ve prevailed over him on a majority of it including at trial against what's also important is that there was no finding or even argument that continued prosecution after the court granted the motion to modify was somehow vexatious or bad faith or unreasonable conclusively right that's that's what the district court said that it had not been true but this record explicitly found no overall exceptional case that the case was objectively was not objectively unreasonable and very importantly that it was not a the this court's decisions as to what constitutes sufficient grounds for exceptional case and this idea that it should be a pattern we see in the s f a systems case we see which get which side of the e on that case find one to the contrary a district court went out of its way to rest its future ward on a single act and again a single act can transform i think a case into an exceptional case but it still implicates a pattern or  party and the court said that the court can only infer the litigation strategy set out above motivated us is lack of candor and transparency so with respect to unified messaging i think the court provides the best blueprint for reversal in that case this court reversed the award of fees because the record in show any abuse or harassment there is no allegation of falsity were fraud or bad faith and the charge of infringement was reasonable this is something i'm concerned about all find out your honor in a moment i find that your i'll get back to that but beyond same case exceptional there's nothing in this twenty five that says the entire case must be exceptional moreover citing going with rembrandt we were all systems case in that case there were many instances if you look at the district court's opinion from the northern district of california of arguments of what was exceptional and in fact the district court declined to find most of those items to be either at leading to attorney's fees or exceptionality fact the only instances the court found led the case to be exceptional was the changing testimony of two dollars witnesses during the course of trial where one time witness testified that there was a different version of a document and another witness testified that he didn't recognize a document which changes trial testimony the district court in that case affirmed by this court i believe as a rule thirty six look opinion was that that case was exceptional fees were granted  despite the fact that other aspects of the case and not the entirety of the case but those acts that occurred in trial made the case exceptional and in fact those were limited isolated acts which is not what we have actually here we actually have the repeated repeated in fact a lack of focus of what we just heard for counsel from intellectual ventures is the focus is on their or their counsel actually denying what transpired at trial and then continuing the denial at the that's the focus of the district court and of a judge stark is the repeated efforts throughout the case to actually deny that this effort happened and unified messaging that was just described the other case which was judge lefkow from the northern district of illinois that was my case are you to this court on appeal in that case this court actually found that that was the one act relating to not adding standing not adding a party was particular conda whether it's the submission of a particular position or other kind of judge district court finds exceptional even if as a whole the case cannot be and cannot be viewed has exception is there some important difference in the statute between those two things i think what octane and i mark did in combination was to allow district courts the discretion to find cases exceptional as opposed to the rigid standard applied and brooks furniture that was overturned was and in considering it i mean footnote six from boston is very exemplary  advance consideration of compensation on the terms and that's exactly what the supreme court game district courts the power to do is when certain things occur to have compensation and deterrence deterrence and therefore compensation equitable factors to go through the court's decision the court on a fifty seven said he found that the relief should be granted i do find those acts of what occurred mean specifically the expert witness late cross examination nation trials rule thirty six that's eighty seven however that's again the focus of i v s put the court then went on to say besides disclosing this new opinion the id later opposed all relief based on the admitted expert opinion that includes that the motion for clarification and april two thousand and thirteen that includes at the feet hearing in august of two thousand and seventeen a denial in fact i would say not telling the truth disbelieve going to what your honor  said counsel came up here that actually the truth was not being told by counsel for intellectual ventures about what transpired in the courtroom and the answer is yes and it's fair to consider all of that under the totality of circumstances and does all that stand out from other cases from all their portions of the case looking all the cases from a district court right now here's more patent cases than any other in the u s back then the nd most in the united states and it says does it stand out in terms of the strength of and the court consider trends litigation misconduct on a fifty nine dollars and so that doesn't mitigate in changed my circumstances and a sixty was the equitable component to a two hundred and eighty five analysis so i mean i'm not sure that you get a more overall is exceptional i find it was not and that's every argument from beginning to end and every non infringement argument except for that's not what's required again not required in your answering  so threw out the case actually flew through the tape all the substance of the case not one isolated act the court and trend micro are in the position of bulk as part of this claim construction not until the experts change construction there was i d f counsel saying hey that was a mistake that trial testimony was an error in trying and that's where judge stark in that moment said that's not true he changed his opinion that same thing was carried forward the question i mean again i mean i think the panel here largely was sitting through digital rights or of texas i think there are there can be certain acts i don't think this case is a case of certain acts i think it's a case of a position that was taken throughout the case so it's not like i slate it act it's a position through other cases there are other arguments for example the want to one that which we were up here back and forth which was winners and losers but just because there are other argument was so significant that under the case overall exceptional i don't think that's we felt i think that he didn't like the argument because he goes back to what we heard argument that it was a pattern it was from the beginning of the case in the construction of b from two thousand and twelve on and through trial that's not what judge stark hung his argument on or his is ruling on and you see that in the record you see that two thousand four hundred and twenty five of the appendix where he asked the question about this particular  argument he has a he has a concern again i can see that this is that twenty four of the record lines twenty four i can see that argument if i were to rule that prevailed on twenty five just because the violation of the rule twenty six but here it really was very notably followed up in the course of its clarification by mistake they are trying to persuade me that i should not accept what your own witness said under oath in front of me said thirty two dollars thirty three cents he goes back to that issue appendix forty one dollars he goes back to that issue and that is the single act it is not a pattern it is not a course of conduct it is not a litigation strategy it's one