nice clear arguments by both sides that alice reaffirmed now in belsky look at the arguments that were raised in the previous briefs where the defendants heavily relied on mailing bilski we looked at the claims arguments so that the district court denied the previous motions to dismiss and if you look at the proposed order that the previous the fenice filed the proposed order said have you considered defendant's motion to dismiss the motion is gran don't deny the motions so that told us that our arguments were had merit that that you part test of now and also the consideration of bilski were overcome in other words the patent survives want to whine because the court denied those motions after considering do you agree that it denial of a motion to dismiss is on a different footing than a denial of same motion for summary judgment it is on a different footing when it comes time for the evidentiary record but when it comes time for a party acting in accordance with it i mean i guess what i'm trying to say is that i don't really see the denial of a motion to dismiss an opinion my core group claiming that the claims are valid and that they're patent eligible they're just saying in fact i see a court is saying well it's it's not so clearly painfully obvious that one side deserves to have this case dismissed absolutely no evidence in front of it so looking at the documents themselves meaning the pleadings there are the same as what was filed in the previous cases there was no evidence your record there was no actual report that could be seen there because that's outside of the between a point of sale system and a back end system and at that point in time in one thousand nine hundred seventy those two computer systems they cannot communicate with each other now the court rule thirty six the district's opinion meaning that the overall opinion was correct that doesn't mean later in time was used by the federal circuit to find some americans have been eligible under water one so looking at all of the cases that have been cited and the arguments that were made it better always believe have it has not determined that it's not there are no it has not but with the way they were looking at this case is that's why i mean maybe this is just a little bit of words nothing but there's a little bit of sensitivity maybe on this side of the bench of referring to something under a two eighty five award as a sanction because sanction has to know something a little extra no different and the british were using  twenty five so could you just not use the word sanction find a different word sure ok well that so here there was no bad act there was no discovery of use to litigation misconduct nothing else side the norm of what is alternate reason for the award which was that your claim was woefully week after alice that alice was a critical moment in understanding the strength of  patent you know prior to the alice opinion in june twenty fourth seen you for about a year we were living in a world where this court and bank you know very badly fractured divided opinion couldn't come to a majority decision on whether the c l s bank patent claims were in fact pattern eligible right so the law was you know at a minimum in disarray for a year and that was the period of time where judge sleet here deny those initial set of motions to dismiss then alice comes around in june two thousand and fourteen which greatly clarif when it comes to computer implemented inventions specifically conducting business transactions on a network right that was what the alice convention was about supreme court  know obviously there's still difficult line drawing on the margins but at least in a core area of course zone of purported invention there it was very clear that they are now outside of the patent system and so as i see what you actually did was now with that great clarity that the federal circuit unfortunately you know we struggled we couldn't figure it out  mayo framework and in this context computer implemented business methods until the supreme court's opinion an hour it's ok now we've got that application in the context which is the very context of your invention so that's why i guess what i'm concerned about is i i understand judge please point of view and now i'm trying to just assume for the moment that i agree with judge pleats point of view now i need you to move me off of that where did judge sleet get it wrong don't sleep got it wrong and awarding fees against inventor holdings based on judge sleet changing his mind after he further considered a motion to no no no you're saying based on the watch being clarified is that what you mean i'm saying that if you look at the history of it it that's an opinion judge she could have me when you look at the previous motions to dismiss dealing with a motion to dismiss the standard is is there any possibility as opposed to even a summary judgment standard where judge i used it on motions to dismiss are rather than granting them allow counsel multiple opportunities to amend their complaint in order to get by if they possibly could i felt that was my merit but that at the beginning of the litigation and then he goes on in talks about alice so i don't see error in this high start when a man has u b s you have something else it's unclear to invent or holdings how arguments that could be successful on one day were unsuccessful the nasty next when the supreme court's alice decision affirmed a prior precedent the supreme court  may please the court a district court has considerable discretion when it terminate the exceptionality of the case here judge sleep not abuse that discretion and inventor holdings has not and cannot point to any basis for this court to hold otherwise for three reasons first judge sleep finding was not based on any clearly erroneous finding of fact second judge the finding was not based on any erroneous interpretation of the law third judge the finding was not arbitrary as to the first point judge pleats finding was not based on any clearly erroneous finding of fact there is no discussion in better holdings reefing pointing to any fa that he got wrong or overlooked it's just they disagreed with his decision and that is the point at which the abuse of discretion standard or affords the most deference to a court is in the decision that he this court held and as if a system vs new egg it's not going to look necessarily at the correctness of the decision but whether it was based on the correct set of facts and the correct law and that's what we have here so if we're looking at the facts the of this patent it's not saying this patent is eligible under want to one it's that the defendant at that time and under that law at not shown that there was no reasonable set of facts on which i'm going to hold you to proceed with this case when  out it clarified the law and established that that two part test for male could be as applied in computer implemented claims so bilski doesn't mention a computer at all mayo doesn't mention a computer at all so the question was if we have a computer in our claims is that going to be sufficient especially under the second step of the mail test to provide an inventive concept and supreme court said no that's not sufficient just having a general purpose computer taking an abstract idea and applying it with a computer is insufficient so under that standard after that case came out judge sleet was presented with our motion on the pleadings to establish that the claims were ineligible under want to one because all they did was address a business challenge and apply on a computer and in their holdings at mit's this if you take a look at page two of six of the record in response to our motion for judgment on the pleadings and better holding says the claims are directed to a solution addressing a business challenge so that's step one right there we have abstract idea now is there an inventive concept the only thing the inventor wholeness is ever pointed to as saying oh the computer especially program well actually if you take a look at column five lines forty six to fifty two of the patent it says that that point of sale computer is a conventional computer the remote seller is a competitor computer system the buyer system is a conventional home computer ed we can't this is sorry say that there were certain things in the opinion of judge fleet on one a one that this court agreed with but it clearly didn't feel anything else needed to be added by affirming it on the rule thirty six so judge slee at the time that he made his decision in august of two thousand and fifteen had a full record before him and what he said he saw that when the twelve the sisters he was also the judge of course and the night of twenty six motions at that machine or transformation test and then alice came out and inventor holdings made its argument to support eligibility of its claims three times after that all three times and made the exact same three arguments they had to to judge sleep to determine in his discretion whether the fees for this appeal would be a problem because it's certainly a question under to eighty five for the district court to answer and so we think he should have that opportunity because so you're saying when it but i thought you said it under high markets under the district court is that one of the first instance because in that situation we're talking about the two eighty five determination if this court were to find that this piece this appeal for example were frivolous that would be a different finding it would be based on the two eighty five finding of judge sleet where you would have the record of judge the finding of the case was meritless after alice and they appealed even under thirty this court remember to  appeal frivolous and were fees for that frivolous appeal would prevailing party on that be able to go back and get a double dip in six to eighty five these for the appeal i think it would depend on what the basis was for that party to go back and say that the case for them exceptional was exceptional because of the frivolous appeal which would be under the federal circuit's rules or was it exceptional because as in this case the claim for meritless after supreme court precedent was handed down and then they continued to make the same arguments time after time and were told multiple multiple occasions that that argument had to be changed and never did and that's clear from for example the oral argument last time were before you when opposing counsel brought up the concrete and tangible nature of the claims and judge hughes pointed out that that was against hordes of precedent on this issue if we were to affirm and then you but not say anything more and then you went down and asked me to eighty five fees for this appeal would he can award fees for and certainly we would put if we were to do that we would put all of our fees before judge sleet and allow him in his discretion to determine which of those fees are based from the exceptional nature of the case and which ones would be appropriate to awar to ensure the considerations he took into in mind when he made his decision which was specifically to deter wasteful litigation so he can make the decision of what do i have to award in this case to signal to litigants in the future that this is not a type of case you should bring and if you want to bring it and supreme court precedent comes down you have to re evaluate your claims and understanding that if your claims are ineligible you should dismiss your case so in this situation we have any clearly erroneous finding of fact or erroneous interpretation of the law now nor was his decision arbitrary he took a measured approach he didn't give us the feed all the fees that we asked for he said only from alice and you won't get your expert fees just the attorney's fees the appropriate award to deter wastefully geisha in the future as for these reasons your honour's unless you have any other questions we ask this court to affirm judge that finding it uphold the exceptionality of this case khartoum dot com the district court vacated its sanction award finding that it didn't take the full consideration the changing environment of one on one and that delaware in the case of y y z for example the district court held that due to the evolving nature of the section want to one analysis granting e q eighty five motion should not take place you know something my colleague has said during his argument was that the district court had a full record in front of it when ruling on a twelve c motion that's david's not true there was no full record their expert reports had been done but they were never in front statements about the prior art and how what inventor holdings patent covered was not routine or conventional