infringement obviously requires that the the direct infringement claim and then inducement infringement claim and none of which are recognized with the exception of the inducement claim is it addressed in in short never seen and i don't see reported in the cases i've never seen anything like this reported in the cases and that's what sets this paper this case apart from the mind cases the acting fitness reco the settlement offer that the settlement of or and what whether there can or cannot be a settlement offer and how that plays into the exceptional case analysis we fully understand that but what the settlement offer in this particular case in addition to being for what we think is a nuisance amount and then that edition to the explicit threat for there to be protracted litigation commonwealth against quinn trying in addition to that the scope of the settlement agreement wasn't considered to come in and the other thing that the district court did address it in insurance was to prevent an investigation here and mr even all of you have here is a case that under the acting fit is standard is well outside of the norms of pat medication that it presents itself a factual scenario which i've never seen a device that  the order dismissing this case but she did have conduct an evidentiary hearing later i know i read it she is at the end of that hearing then you would know at the appendix at page fifteen fifty seven and she concluded after testimony of former counsel after sworn statement from the office administrator that no misconduct had occurred that warranted reporting i believe it flows from twenty seven off page twenty and public information on the website he compared those materials to the claims of the eighty five to patent he interviewed the inventor on at least three different occasions he review prior art references he reviewed prosecution this through all of that present in his deposition and a contest as this court held that i believe in its q pharma case versus andrew jurgens which is cited in the briefs i'll quote a claim charge is not a requirement of a pre filing infringement analysis that set page thirteen on one of thirteen three so although there was a discrepancy and when the claim charge was prepared in the view commonwealth the proper priesthood investigation had occurred pretty soon in the form of the other investigation conducted by counsel even if it is quite a triumph alleges that particular piece of evidence came later i'm not conceding that i'm simply acknowledging that concession what quinton is it asking ultimately here is that this court find that the district court abused its discretion in ruling that this is not an exceptional case and it asks you to do so where before this rationing litigation contact conduct know that a geisha in history not a part of the commonwealth either before or now after no extending of the litigation to try to cause additional expense to be abundance of caution potentially a misapprehension of the law but that claim was withdrawn very quickly as were all of clea this isn't among the cases where someone pleads a al of the complaint seemed to indicate a good faith and chance to proceed with litigation under the law the court also found that or considered the other claims and it c quote miss characterizes the plaintiffs infringement theory which was never about the mere sale of devices the theory was actually about the provision of a service the performance of a process no infringement claim had to be frivolous because we couldn't commonwealth couldn't point to one single infringing and yet as you alluded to earlier judged by no single direct infringer was required at the time that the complaint was filed in fact the court said claim one of the patent appears to have two steps and then using defendant's website suggested it performed at least the first step it was reasonable for plaintiff to conclude that discovery might upon cover evidence that defendant either directed control or induced the performance of the others that the presence of one ill conceived claim might counsel referred to the priest suit settlement offer as the district court explaining the record simply did not support when translating allegation that commonwealth was simply trying to extort patent and then later in the briefing refers to it as a nuisance value subtle it's both too much and too little there is nothing improper about serving a letter on a party before serving a lawsuit  a has said it's proper to remind the opposing party of the ordinary costs of proceeding to trial and suggest that it may be in the opposing parties interest to avoid these costs by agreeing to a settlement  of the five cases ever filed by commonwealth there is this one one resulted in a subtle and the other three were voluntarily dismissed are only the pattern has no litigation history either before or after quinn drano makes the allegation that the settlement offer went too far beyond the pattens terms and yet that statement is simply not accurate when the offer was made to license the products product in the agreement is defined as breath testing kids and breath testing services into the mix of the totality of circumstances but it certainly does add into it in a strong way in this case and in particular what's also reflected here is that is that that claim you know we talked about what we did and did not happen in the preceding proviron investigation and one thing that should have been clear from the pre filing investigation was that these devices were in the prior art was from the patent markings on the breath test kit and that benefit cation of the point was from a contributory but that doesn't get you yeah addition to that you know that the direct infringement claims should shouldn't have been filed either because those claims require that somebody had to perform each of the steps that met the claims