i think it's important to note at the outset that if the court determines that the summary judgment of terminations was inappropriate or that our now should have been entitled to additional time in discovery to ask questions regarding these unanswered questions that the court should vacate the award the exceptional case finding since piddle i would not in that situation be a prevailing party  i'll start first with the determination of litigation misconduct and point out at the start that of all of the misconduct that the court relied upon was contained within the breeze therefore this court is for all intents and purposes exactly situated as the trial court was in making the determination litigation misconduct because there was no oral argument no hearing no personal about situations that you can see on paper usually when you're saying no personal appearance of i mean there was no there was not a specific hearing on the motion for attorney's fees but it's not like the judge wasn't there throughout the entire course the trial and that you didn't have multiple not begin to specs i know a lot of work is done behind the scenes by federal judges i cannot begin to suggest how much time the trucker put in on the scene certainly we had several hearings in which we took up the court's valuable time  of the the first instance of the court suggested that litigation misconduct was when our now it's suggestion arnel took the position in its brief that a hearing was and we cited those cases and the cases say that discovery in a situation where you have a determination of section two eighty five exceptional case prior to a truck on summary judgment  situation that that in re perry we respectfully submit is not relevant to these proceedings given its procedural stance which differ greatly from the procedural stance for the trial court and therefore we do not believe that was  infringement litigation answers the question of whether or not we really what we said was that the allegations that were made were sufficient to survive a motion to dismiss we didn't pass judgment on whether or not a free filing investigations with sufficient to support those allegations that's true i would suggest your honor and i've seen  holdings from this court or at least statements from this court there would be the unusual case indeed that a complaint adequately stated a claim for direct infringement but there was an inadequate pursued investigation and i would submit sufficient to bring go forward against people that for indirect infringement there therefore are precision vesa geisha in with respect to pitt ohio was adequate and certainly was not grossly negligent as is required by section two by what it what do we do with the fact that there are some apparent inconsistency agents in our case where we have some cases that say whether or not you conduct a priest investigation it's relevant overall to the to  five analysis in other cases that say no we don't look to press that investigation in the absence of an actual motion under or left there certainly is that dichotomy in the circuits in the circuits case law i believe that  analysis unless we find that there is a grossly negligent attempt i think you can marry the to your honor i think right now you've got two different arms of cases out there that seem to be opposing each other and i think there's a logical way to marry the two to suggest that yes you can have section two eighty five liability for grossly negligent pre suit investigation that's not what you are going to the district court right i mean one of the things the district court held out was the fact that you argue inadequate we said well well the question of whether and that inadequate is not safe under section two eighty five grossly negligent is the standard under section two eighty five inadequate is something less than grossly negligent we asserted therefore that the suggestion that our presumed best gauge was inadequate is irrelevant because it is your relevant to the question of whether that precedent vest a geisha is grossly negligent now could we have worded that footnote a little bit better probably  but certainly in the face of all of the arguments we made acknowledging that our precision vest a geisha in was relevant in the section two eighty five grossly negs a determination a clear and convincing evidence of litigation this conduct i would suggest that footnote does not exhibit also i think it's the court has recognized that there is some dichotomy in the court's case law about when you don't have a rule eleven motion filed and certainly could ohio did not follow i'm the question exists as to whether or not can't proceed under section two eighty five for a basement appreciate investigation so if if you apply that arm of the case law then that footnote appears to be reasonable in its argument to the trial court back to the terminations of reasonable reasonable objective leave basis i gan submit your honor that that fine if determination by this court in the pit people in that case that our that we had sufficient facts to proceed on through against people that for in direct infringer necessarily require that we have done a fine and direct infringer pedo which we did precludes any determine any conclusion logically that are presumed investigation was inadequate because you can an inadequate and a preset investigation that produces sufficient evidence that allows a party to file a valid claim seemingly cannot in that instance be inadequate and so or or certainly start to finish in reaching the conclusion that there was litigation misconduct or if the way you look at the law is articulated broader than that certainly frivolous litigation litigation prolonged litigation and i believe that the court didn't just focus in concluding that there was little litigation misconduct only on the mis citing of the court's opinion and the mis citing of case law one of the other things that judge back with said was in opposing the motion for summary judgment you came before the court are now with inadmissible evidence any relevant evidence and in the posing a motion for summary judgment you're not supposed to come forward with hearsay evidence that you know is hearsay  never asked to confirm or deny any of the statements in that document you know i had a time really or at any point in time it's a pet ohio i mean i excuse me a people met advertising  ok with respect to that issue i would like to say a couple of things you were considering complaints that were not my complaint was not the pet ohio complaint you were very judgement on you were looking at people mets complaint to determine whether or not they had stated a claim and interesting lee has if you look back at what you wrote and what the facts were that you concluding that there were reasonable inferences and that are now will certainly allowed to proceed beyond the motion to dismiss aids you discussed the white paper in one sentence there were other statements that people net had made that they are alleged with respect to scanning with respect to barry and smith and there is a whole paragraph in your opinion that talks about the specific statements in the people that complaint so i would suggest that number one you would never discussed the white paper is certainly in the concept in the context of our client had ohio so and i don't believe you were looking at the white paper in the four corners to determine whether or not it was reasonable to infer that pedo io was doing anything to infringe the zero seven eight patent with respect to priests suit investigation the cases and the basis for us relying on it and fighting it to the district court which is really two fold it wasn't one fault yes it bears on the extent to which frivolous litigation was commenced but it also bears on the prong of proving somebody subjective bad faith but it is correct though that it's myth that the that the trial court essentially a a rule of the standard in assessing the quality of the priest it investigation isn't right i don't believe that's what the court did decided to roll out and when she discussed it she cited two rule levon for the purpose of the case she but if you look at at the standards that judge that with applied she's very clearly applying the clear and convincing standard and she certainly didn't shift the burden that at any point in time to the bur that it was our burden to come through come forward and show objective basis this objective bad they said as well as any other basis we wanted to come forward to prove exceptional  meet in a two eighty five contest i agree that the rule eleven standard is not a standard that should have been used i don't believe it was used here the fact that there are discussions about the lack of in my opinion the gross negligence lack of precision investigation and the fact that she's referencing a rule eleven case to compare conduct does not mean that just one she applied that standard at all because i think if you look at the way she articulate the standard and talks about it in the context of the actual facts i believe she did apply the correct standard and certainly she said there is clearing convincing evidence she said that more than once she also addressed the correct standard of objective baseless and subject of bad faith and then found in addition to that existence also the existence of litigation misconduct so the reality is for her to have concluded it was an exceptional case she didn't need both prongs she could have applied either test and under either test exceptionality was met in this particular case so while there is a reference to a case that talks about rule levon there are certainly a slew of other cases she cites that demonstrates she knew what the standards were and she applied them and held off to the burden of clear and convincing and didn't shift the burden the way it would normally work in a rule eleven and i believe that's the reference and use of the priest investigation discussion because if you look at some of the cases that talk about it outside of her role evidence they do it within the context of is the claim objectively reasonable or baseless and was their subjective bad faith that's certainly one of the primary reasons we talked about it and said look at what did not happen here because i do think you need to consider that in order to be able to make a determination as to whether or not a claim is objective lee unreasonable because as we know that standard is backward looking you look back in time and everything that happened in that is a truth of backward looking and i was a little taken aback by the fact that the district judge said well what they should have done is you know basically be sluiced in the night and go in find rest up where the trucks are parked and sneak in and look inside the cabs to see what they can find that seems like a bit much to ask for a priest investigation doesn't  not to me in patent infringement cases with as expensive as they are with the fact that you can quite frankly get nailed if you don't do it right now most people hire private investigators or after drivers in this case hey you're going to see these trucks see if there are any scanners in there no i don't think that's unreasonable at all i think that's the what should have happened and at a minimum there should have been some contact with our client like there were with some of the other clients people have certainly was on though this that they were going to get sued we weren't the reason we weren't and we've presented this is because there was a motion to  that they needed to deal with and that's the reason we got sued and that's the reason nobody looked in cabs that's the reason we didn't get a cease and desist letter or an opportunity to explain to them and normally when your client gets sued you respon have tempted out of the box to deal with that issue through a phone call to say i think you made a mistake our client is not doing this well what's the response to the argument that that those documents that you just overlooked the first time you had to produce documents where the where the documents that actually showed you were using life cargo and testing which was different than what you swore to at after being initially  respect to the other side it's hard for for someone to say well they're telling me their net they're not doing anything wrong and then they receive documents eight months later despite an earlier documents that action that shows that that you didn't do it the way you said it well first of all some of the documents that were used in the test were in fact part of the feasibility study now the specific xcel m documents that's what we're talking about here is it true that that was the first time that they were aware that you were losing life pardon i don't it shouldn't have been no didn't you deny before that that you know we didn't deny it if you look at the affidavits it's not in there at all there was and they never asked us were you using active cargo on this particular day and we deleted it out now and we certainly didn't say there was a driver and a scanner and we circled the parking lot i don't even know where that argument's coming from of me is you know did you notice the fringe we absolutely denied infringement we denied that it really is and the response to the complaint yes we denied that very clearly and every affidavit that was submitted denied us infringement denied that we were not using scanners and made very clear we never created a loving manifest but the affidavit active cargo were not an act of cargo they don't you don't address that at all now they don't i do want to address the issue of this exaggeration or mis character rates right zation of the record i've already talked to you about my view on the interpretation that has been presented here by our n l on what you held because that was something i definitely wanted to address it was raised on page thirteen as a reply brief and i just leaves it's wrong the other issue that i want to address is that there are statements in this reply brief that they never knew that we were not using scanners across our fleet at that the first declarations in address that and that second decorations did not address the one i saw that in the brief i was completely taken aback because the first declaration that they gave us and that we adopted verbatim very clearly said that pitt ohio doug not and has not generated loaning manifest and doesn't use scanners so those are two instances in the reply brief this for this court where i think are now h again exaggerated the record i misstated the record in terms of objective basis and subjective bad faith that standard as as the court is aware is backward looking i believe that at every turn the moment that complaint was filed and filed to allege that we were infringing the zero seven a patent because we were using scanners across our fleet i believe that the time that was file was on its face and incredible i think that that statement if you look at the statement in the context of what that statement was made a hearsay statement to i believe it is objective  unreasonable to rely on that and file this case when it's filed on information and belief on the salient elements yet i do i also believe that there is absolutely no authority for the position that you can properly plead a case and that it doesn't mean it's objectively on reasonable because if that were the case there would be a lot of cases because as we all know when you file that complaint you're entitled to have your allegations accepted as true regardless of whether they are of course accepted as true so yes the fact that you can properly play in a case has absolutely no bearing after the fact when you're looking back at the whether or not sub thing is objectively on reasonable and the only two pieces of facts if you will that they rely on in their complaint a hearsay document that our client an author and a hearsay statement that our client wasn't privy to and did not make it would be a different case if the statement that was alleged in the complaint was something our client had said but there is nothing in that complaint even on information a belief that in any way is directly linked to our client it's not is if they said  website here's what pedophiles that nothing like so yes i believe at inception the case was objectively baseless and i believe it continued to be objectively baseless where in the record they had all how told you that they did not use live cargo and that they drove around the parking lot during the testing of the top of my head your honor i'm not going to be able to tell you specifically where that is in the record i believe that that is in the records certainly well it's a big point and you stood up here and told us that that's what they said but i haven't seen that in the record so where is it you don't have any idea where it is i've not  was that this was live cargo that's seems to you it seems to suggest that the declaration probably seems to characterize a declaration process we're going through a while trying to make a determination of  information to us exact colors for this court i think exactly what that process was like when arielle was trying to find a way to resolve this case without ohio by obtaining declarations key important information regarding what had ohio did during this testing process was not provided to r and l despite our n l's request numerous times to get that information from that ohio you know we didn't learn until after summary judgment briefing is close that this was in fact active cargo if you really thought that they were using this scanning equipment across their fleet and aggressively and consistently infringing why didn't you send them a ceas honor i don't i'm not sure it's been three years ago i'm not sure that that i can accurately speak to our deliberations at the time we felt that we had sufficient facts to proceed against p pedophile extensively quote in the document that talks about its capabilities in its existing technology capabilities to generating loading manifests before the truck arrives but never always quoting about generating a loading manifest through scanning no