was a pair of cameras and the steps the algorithms of two three and four dr phil are said agreed with that plus he also said you need to have step one in there that you need to have real time correction and you need to have a feedback mechanism so he had three additional elements to what sarah had and that's what brought the court asked which construction should i and four steps two three and four are the structure along with the cameras that go along with the function ok first off we know that can't work because there's no computer in there it conflicts with what filler now that's definitely in conflict with what they propose here because they propose no computer and just those cameras just the the means for determining dr phil or thought you needed a computer also apparently to run the algorithms so believe that just from the beginning that claim destruction would quickly reveal that there is a conflict but since it does in some fashion require that the court to construe that claim we thought it would be better to wait until we had construction which the court had already scheduled at that time so that's the reason there was no or no role levin but to eighty five at least since the supreme court in octane you know completely covers any of that conduct anyway and seems to be even a broader standard so to say to eighty five seem to be the best way to address this which is what we did before the district court and what we urge this court to to do here not everything about this case has the hallmarks of an exceptional case one that stands out from others the specification conflicts with the claims they're insoluble just like the have found these even the structure element lead the function is nonsensical the third thing is once they then they got a caution they got a warning from the p t a b that the claim is insoluble that they can't do anything more and in fact the p t a b just didn't look at sarah's construction say that's wrong it failed to find any structure in the pattern that could support the function of the element so that's a third thing the fourth thing is their expert disagreed with their construction and the fifth thing is if they had some kind of good faith basis it was incumbent upon them to produce that opinion the precint investigation the opinion they got after the p g a be said the claims were indefinite but they refused to do so instead they came up with a declaration of their lead counsel that says yeah we did everything we were good but we could have come up with our own declaration that said they had bad faith so it's just not evidence to support good faith and that seems to be where the district court with a straight it just a court didn't realise of parent me that this claim was invalid from the start that it conflicted with the spec so therefore apparently it believe that even though we had a p t a be ruling that the claim wasn't definite not really because they both are constrained to follow thirty five u s c section one twelve paragraph six so they both identify the function and look for structure so you know whether there is a presumption ability whether it be you know all of judge stark's conclusions weren't supported by the evidence for example he found there was a good faith basis that sarah had a good faith basis he doesn't cite anything in the record to identify that the only thing that we could come up with in which tara could come up with is that the judge must have relied upon this declaration from their counsel but that's not evidence because the it doesn't say what the i supported right it doesn't right more on one and getting back to your question now i remembered it the dish report also found intrinsic evidence supporting the claim construction and didn't provide any cite cite to that but we know it's exactly the opposite the intrinsic evidence says that the the structure which corresponds in it's for the means of the terming is just those cameras and nothing else no image data base so the intrinsic evidence actually defies their construction and that's why along the way sarah felt compelled to change the specification to rewrite it to include also so it's not just the cameras it's the it's also the cameras and whatever structure they try to edit and argument lost on their last claim construction or they'd move to dismiss once they lost one construction once the court said it had some valid yes but they should have done that before they even brought the case or when the p tab came along at claim one in find that they meet in any fashion because one describes the invention is one thing and one describes the invention as a wholly different thing and that's why it's not a court case about just you know try court says it found good faith because at each stage the litigation played provided detailed arguments grounded in the interest of evidence in support of the supposed constructions a fair reading of the court's orders they believe sarah's arguments through its expert testimony in some circles as you might but in this case i don't think you should i don't think she will be part of the propounding of it should and the district court to look at it and say that our our vell our decision to continue the case after seeing that did not make the stand out from from the others settle those cases what evidence or of considerations did the district court cite or actually rely on that weighed against finding a nuisance suit well your honor we're at five i unlike many of the cases in which this court has expressed concern over what it refers to as predatory patent cases and i'm referring course to the rothschild the situation i'm referring to the us if a versus new a decision there is been some evidence in the record as to at the very least the amounts of the other settlements so that the district court can weigh or the central in fact quote unquote nuisance cases brought soley to get cheap settlements for less than the cost of litigation brain lab did not put the evidence of those amounts into the record furthermore unlike the majority cases again the briefing and again to talk about the us if a it if you put them in now we did not rely on we didn't have any we don't have the burden of persuasion on this motion your honor brain lab if brain lab thought that this was truly a nuisance case just to extort nuisance value settlements it had the burden to present that evidence the district cour without and they could but the district court decided that brain lab did not meet its evidence its evidence or burden and but regardless your honor here the record is governor answered my question i'm sure it was your question your honor what evidence or consideration for that is your court side or actually rely on that weighed against finding yourself that brain lab had not met its burden by only saying that because four cases were in gauged in a evidentiary hearing and heard facts from both experts after hearing the experts testify the district court found that while he disagreed with our positions with observers positions that  the in this issue where the sole determination is one of claim construction and the just recording gazed in a factual finding heard live testimony in which he is the best decider of of the positions that were the other side i mean it's it really undermines your case you should think about that going for the i mean i don't understand how anybody rationally looks at this and say they don't have a non frivolous argument on attorneys fees even if they end up not prevailing mean it just makes your credibility go out the door when you say their appeal is term so they could apply prior art to it but they also said that it's indefinite so therefore they admitted there was a reasonable arguments that this claim was amenable to construction and then they turn around an appeal and then say it subjectively invalid space and you should looking at the case and in found it not to be exceptional is it's a district court who's supposed to look at the cases only within the experience of that particular judge or at all of the cases in that district with all the cases and with within the country in order to make a determination whether this particular case is exceptional octane says it's to destroy course discretion and i case by case court judge was never had a patent case before presumably has heard has read briefs heard arguments made rulings they have no no your first assigned cases just came on their the they have no prior experience in any case whatsoever and that case it might be that in that case they might have they might need to look for other cases that isn't the case here with you just are and furthermore  judge the tools with which to look outside of its own cases to the extent i thought there were some necessary it didn't say other courts have found to claim some a claim construction arguments like this to be unreasonable in these circumstances and in fact i'd never raise these ar the claims of all the claims under one of two and one of three which succeeded on claims nine i'm sorry claims ten and eleven claims one through nine worked on to be indefinite in a number of cases them to be indefinite repeat yes the definite then it could have instituted because we did provide prior art which would we believe have found those claims invalid under one or two and or one of three but there were a number of cases that came out i p r still somewhat new it was even newer back then there were a number of cases which came out which construed means plus function clauses and in those cases the court would see the p tablet found would find whether they were valid or whether they were definite or indefinite  since it was at least a threshold issue that the p t people have would have to analyze that's why they filed the i p r because we would win if it sounded indefinite or when if it found the claims to be invalid so it wasn't a frivolous this plane one of the which we're talking about because it found that there was no corresponding structure anywhere in the specification so the p t had did look at it looked at claims one through nine found it to be indefinite and then sarah completely thing one objective signposts they got which said that this uninformed this you know unbiased observer looked at the claims and said they aren't definite that at least should have prompted them to decide whether that is that they didn't do it based on evidence in the patent it's not like they just refined it were slightly changed it they came up with now six different claim constructions some of which were contrary to the others internally inconsistent so it's not like the refining it's saying yeah we learned a little bit from the key tab it didn't like when we said this so we'll supplement that will fix it it just continued to come up with five different claim constructions solely to obfuscate the case to make