good morning and may please the court this is an exceptional case but not because of anything that checkpoint did or did not do during the course of the litigation or before buyouts it is an exceptional case because the it fully disclosed its infringement theory throughout the case and it got its case to verdict and that is why it is so exceptionally important that this court reverse the court erred isn't the point of discretion is not without limits abuse of discretion it has to be guided by sound principles it can't be the subject of whim or some sort of free willy wheeling decision and if you look at the decision in this case conclude the checkpoint could have brought the exact same case again regard this of it's mode and this demonstrates the inherent flaw in the district court's conclusion that motive made this case exceptional extraordinary outside the norm  district court greenlighted this case every step of the way checkpoint disclosed this litigation it disclosed its evidence and they did that at claim construction which the court ruled in favor that was manufactured pursuant to the patent was actually being sold it was found to have been in the i d c it was determined that they weren't fact making the label with the threw up and checkpoints reasonable belief infringement further demonstrated the checkpoint had the belief that the patent in fact worked the interviews dispute that's an indisputable conclusion that checkpoints motive whether good or bad could not change the fact that the defendants were accused infringers with a plane that was strong enough to get to the jury in fact a claim on which they tried to conceal infringement before trial as to one of the accused laid using motive to shift purpose underlying section two eighty five judge where you talked earlier about recent investigation first there was no reason for the district court to go back and question checkpoints preset investigation courts that have looked at  investigation of have done so after they have found the case to be frivolous and they have gone back to determine if the point if knew or should have known of the problems associated with that claim and could have done evidence of infringement moreover the district court's conclusions regarding checkpoints precent best a geisha prove nothing about what checkpoint knew about the merits of the case if you look at the district court's decision french and it was also referring to this distinction that the defendants continue to try to make or did not try to make during the entire case that between all take switzerland and i'll take belgium the fact of the matter is thank checkpoint was thoroughly familiar with the structure in operation of the all take techniques we see that throughout the record in this case checkpoint litigated against all taken switzerland and had a finding of infringement checkpoint and again the issue was whether or not there was a through all checkpoint after it acquired the triple five cat and then sued all tag in the united states after starting to see its products come onto the market here so when th they in fact tried to claim that there were one in the same for purposes of infringement and if you look even further at the record the district court's factual conclusions with respect and no written opinions as to infringement but nothing in the district court's opinion ever explains what it was that even more robust priest suit investigation would have found and more importantly the district court's opinion never explains how a more robust crease it investigation would have to have been any impact on how the case was litigated the court never explained that million dollars in fees the district possible court also erred in finding that it was one reasonable for checkpoint to assess infringement based on a argument exceptional focus on the very same issues that the district court ruled on during the case the district court ruled on this very eerie of infringement and found several times that the evidence of infringement was sufficient continue and go all the way to the jury and i think that's particularly important here because into training the reasonable as a checkpoint with a gate this case the court has to look into those circumstances be able to rely on he just reports rulings as an indication that the claims are reasonable and while that led to the strength of the case the same principle applies here the party should be able to rely on the just reports rulings indicating that the case is on track that it's being litigated in a reasonable way but that's not what happened here that the district court ruling that checkpoint unreasonably assessed infringement is an about face from the position that it took at trial and its statement that checkpoint couldn't prove infringement in reliance on the three four three and the four six six patents together with the defendant was to create a label that had a through hole checkpoint fully disclose to the district corps how written tended to prove infringement in fact during the   that the defendants never demonstrated that there was any difference between the two they never demonstrated that all tag made labels with the with a hole in switzerland but without a whole adult and remember all take pick up the company moved from switzerland across the border to belgium and started making the exact same labels at the exact same equipped but more importantly though checkpoint disclosed to the district court that it could use reasonable methodology and his opinions were reliable but it also went further it heard all of the testimony about the supposed differences between the manufacturing process and the lakes is the same things a question of law if for example we disagree and say that their lawsuit was while they lost was nonetheless objectively reasonable isn't it a question of law as to whether or not it would be ok in light of an specifically said that you can have subsided a study that would suggest that every time someone loses even if they had an objective lea reasonable case and it was very close and many of these patent cases we get are very very difficult to  decide and very close then that would suggest that any time there is an e mail that says i really want to stop them from making this i want to drive them out of business i don't have to compete with them well that's something actually quite frankly a patentee should be allowed to do because they have a right to exclude  and exclude their competitor if the competitors stealing their technology i feel as though the rule of law you're asking for is a rule that if there is evidence of motive that isn't just wanting to enforce a patent but wanting to make that company testimony credible in addition the record includes the testimony of at least four other witnesses who also testified that checkpoint knew that and of course the finding by jury was that is it that he finds this person's testimony fees and they chose to use it as a nuisance patent indeed for other people told them that mr jordan sent mr pickel mr bleep mr bowles and act from the prior owner the patent didn't enforce it to attempt to enforce it because they knew inoperative so this is a very unique circumstances not just finding one bad e mail that somebody mouth off about going after competitors this is where they actually knew the patent was focus and they perceived it anyway in order to make the other invalid for four different reasons one of them was inoperative and the different court seen the testimony agreed so there is in fact a finding and check point it out appealed that file they're stuck with it so again your honor the question is it's not just finding one bad if you have one that common this is a different case than that is very similar to actually octane fitness when it went back down it remains because we have more evidence that we have the findings of the court not only for bad motives found your honour's there is ample supporting evidence of record there's no way one can be left with a definite firm conviction that a mistake has been made this record to count the evidence is more than plausible and there's certainly no basis to say that this record took  court although a copyright case of course the same standard discretion applies said that a district court may award fees even though the losing party offered reasonable arguments and in that case that would apply here he told checkpoint he thought it was inoperative that doesn't mean that checkpoint knew it was an operative nor does that convert this into a fact finding that the district court found checkpoint was asserting it happened you knew to be an operative is that your understanding but failed to manufacture a label according to it doesn't mean though that the plane's limitations were impossible yes but even if missed even if this were the fact finding that the closing counsel said even if this were  issue the district court didn't even focus on that till eight years after a jury turned and the only mention of it i think in the entire opinion is and that's the point but one i agree totally that was not some cornerstone of his determination as to why this case exceptional i agree your honor if you look at the first time we were before you an exceptional case not ability didn't even make it in to the district court's opinion and didn't they argue in their latches motion that the tags from belgium tug from switzerland were identical didn't they actually make that argument they made that argument your honor in their lectures motion to the district court that's correct your honor and so would that have supported the reasonableness of your rule viewing one of the tags from switzerland i'm thinking it would be the same as the tag from belgium in advance of the litigation that's that's what we contended your honor that's consistent with what the federal circuit on the last time around in fact was the advance of litigation because unlike defendants pelleas arguments about in operability which i really did not see being a cornerstone of this district court's opinion i really did think what i was reviewing in terms of her opinion is  a determination that you had performed a reasonable investigation in advance so please tell me exactly what you have done in advance of bringing this litigation checkpoint litigated against all tech switzerland in the i t c where there was a finding by the c that the alltech switzerland label which the testimony demonstrated never changed between the all time switzerland and i'll take belgium didn't even change up until just if it did just prior to the litigation litigate my recollection is they were device quite sure ana and they were both device crimes switzerland in the united states correct here on one of the point with the limited time that i have here i want to come back to this notion of all this evidence of checkpoints bad faith as your honor pointed out what if there is just a single e mail and that is found in the company's files and is that then going to get rocks that essentially what happened here the courts finding that there was some sort of improper motive was based on a single conversation that occurred between two people and it was denied on one side and there are no contemporaneous notes or documents that back up what supposedly was set moreover if you look at the district court's findings respect to  checkpoints modus operandi as my my friend refers to it if you really look at the record check point really did not have a history of suing and acquiring competitors checkpoint the district court my opponent focus on what may have happened afterwards there were two acquisitions afterwards but there's nothing in the record that supports the court's conclusion that any of this demonstrated that checkpoint was times now in this case we were before you back in the early two thousand time inventor ship you reversed the district court that we were back before you almost four years ago to this day arguing the first exceptional case motion and