colon rudolph it is infringement for years provided false discovery respond filed summary judgment papers even though it knew its product infringed argued a never fully explained theory that i t c did not own underlying patent and during and after trial played semantic games regarding what its machines did and what functions were important to it and its customers and then alexis the striking weakness of rudolph's position regarding its pre two thousand seven p r v x machines as well as the unreasonable manner in which it litigator the case through trial and post from oceans satisfy satisfy the screen court standard to eighty five rewarding fees did you read the decision of course or not and this is all in the one paragraph but there's there's there's no cites to the record here for the vast majority of these and as we went through another brief for example the discovery responses there's no citation to a single discovery response there was a fair  cite any discovery response that wasn't true we showed in our brief that this issue of the ownership in fact there was a legitimate issue because i t c amended their complaint to add a holding company as if as a lisa cohen are not the sole owner of the or vice president testify that holding company was the owner that's a key issue in damages because if the holding company owns the patent under the poly america case i t c gets no lost profits and that's the only damages they have and we went through those issues  our point is part of the abuse of discretion here by the just recording of legal error was failing to consider how the totality of change the first time around the court said you are still infringing even here after a trial in two thousand and twelve you never stop and remember it's clear we actually to suggest that he learned at the time he tested the products that they infringed she did not interpret the testimony the way and even if i were inclined to go along with your engine that is a fact finding question and answer have to be considered in the context well now but but under this withheld the the circumstances she found this case except because she sinks your witness the c e o of the company accused of infringement tested the product admitted in his testimony whether you agree with this interpretation or not this is her fact finding admitted in his testimony that he tested the product and found that product infringed the patent then that same company continued to oppose litigation over the issue of infringement now maybe this case only goes up until the two thousand and seven summary judgment the product that is the subject of the summary judgment but certainly it seems to me that you have a very hard case to make that she would be abusing her discretion if she found that portion of your behavior that portion of the case not rudolph had an expert in engineering and software expert look at the court's markman construction of the means plus function clause of that software element which is different from the one mr super talked about and that martin decision came out over a year after m schubert checked out about a year after his deposition he had no benefit of the court's means plus function construction that was disputed and then that expert applied that to mr c mr super didn't talk about in his deposition the means plus one element that wasn't what he tested he concluded in her factual determination that the company was infringing the product and then there were subsequent oppositions and in fact you affirmatively follow your question is was there an objective basis to say that there was not an infringement under the actual facts regarding the operation of the software of the product which there is no indication as to super devaluated against that means plus function cause of cause and i would submit that there was objective we reserve the right to see hasn't contested that that in itself would be objectively unreasonable suppose that we just suppose we don't agree with you and that we conclude that at least with regard to that two thousand and seven period stipulate and you in fact drafted it and again i don't know if it's you personally but you the party you represent and of course when interpreting a contract if it's at all ambiguous you interpret it against the draft or contract mon first year and here they're probably quote me some cases so when there's one track reinterpreted against the drafter you your party drafted the stipulation and the stipulation says you're not going to contest the amount of three point two million dollars yes for all you law students who are wondering whether you'll be employed after this three point two million for the attorneys fees that's not the damages in that case those are the attorney's fees but you affirmatively stipulated to that because very politely said you don't want to cause anyone to have to go onto additional litigation to go through the itemization the context of that was after the court in view of those willfulness findings later reversed said i grant itc's motion to get the of their attorney's fees for the case now will turn to how much money that actually is in that context we entered into a stipulation on the question pending which is what are their total fees that the letter construed anywhere you like against us or for us but it does say we seven or something else but we did preserve in that same letter the right to challenge their entitlement to the feel word and that's exactly what we did on the first appeal got their decision reversed the vacated attorney says excuse me and so then it came back and now there totality of their fees if they say their client paid him three point two five million fine we're not trying to shirk that stipulation the question the separate question now is what portion of those fees are reasonably related to the purported misconduct and that stipulation doesn't heard that a portion was appropriate but where did you argue to her that we are not bound by the stipulation because of changed circumstance i don't think we were really trying to say we're not bound by that amount  that the limited scope of that stipulation is to the amount of the total fees and this is a separate question now about the importunate issue so that stipulation whether you consider it to continue to be in case applicable or not it simply doesn't answer the question is no argument  post that had been your state what's an area would be in now would you be bound by three point two million because she has decided these are appropriate even though she's decided arguably they're only appropriate for a portion of the case not for the whole case at what point you know what is the language which binds you to no matter what you're bound i'm not i think maybe there's some more expensive language and i'm not sure if i'm totally being responsible i think the key here is that at the time of the stipulation the court already said i grant itc's motion in its entirety because of willfulness they get all their fees now the only issue remaining to determine is the amount of those total fees that's the situation here and i don't think it's you know it's fair to that what they're agreeing to not contest is the reasonableness of the request for fees i think the fear reading of that is if we're don't pay because we've seen plenty of cases where we say ok you're allowed attorney's fees and then the parties spend another million litigating exactly the amount of hours that was spent on the hourly rate and so forth so it seems perfect perfectly reasonable way to construct this to say ok if they're found liable and this case found exceptional they're not go quibble over whether it's three point two million or three point four million or or two point nine million but they say this agreement so really relates to the reasonableness of the dollar amount and does not in any way limit rudolph's ability to contest or appeal i think sees entitlement to attorney's fees on appeal or otherwise as may be appropriate that seems to me to be a very very very broad reservation  and certainly the circumstances now are maybe significantly different you don't contest for example that if the stipulation were not in effect you would be entitled to a far far far smaller  everything it wasn't one instance when he testified at trial in two thousand and eleven that there was absolutely that that he tested the machines that he found infringement and the whole court heard the judge found a startling admission for multiple reasons also with respect to that admission it's not the only time that they that rudolph tried to obfuscate what and how their machine worked there's a reference there to how to do with the summary judgment case and the of the case it's at least half of the products at issue if you look at the verdict form it was a that's all leading to me some read judgment and i presume the vast portion of the three point two billion dollars and attorney's fees were chalked up in the trial question of this case rather than the initial summary judgment i would say that it's fair that those fees would certainly track the course of the case but what judge silver found wasn't that that was the isolated incident of misconduct litigation misconduct standing alone supports a fear ward and she found a pattern of misconduct from the beginning of the say that we're still the prevailing party in this case and we prevailed on a month a lot of our claims and i've haven't heard from my opponent that we are not the prevailing party of the district and they didn't oppose the fees based on that they simply said that we weren't entitled to f that's not the interpretation here as we are not asking for that so what is your interpretation because you did only prevail on preaching thousand seven porsche which was that the majority of the damages awarded it was that it was not the majority i'm sorry which at least half the damages or that if that's true we have we have no information on that you are saying that but you know all we have in the record is a stipulation about the total amount when you don't know anything about the underlying amounts and so if we believe are you saying that the majority of fees were incurred in connection with the summary judgment motion rather than in connection with the whole trial that afterward no i'm saying that judge silver looked at the entire case and was going toward fees and didn't ward fees twice now for the entire case because  reversed on the trial of infringement post so that deals with the the earlier stuff provided false discovery responses the discovery current earlier filed summary judgment papers even though it knew its product infringe that all has to do with the the earlier period of time so it seems to me everything she pointed to has to do with the earlier period of time and all of the list so called litigation misconduct or everything they did had to do with the damages related to that period of a direct result of what happened in the injunction proceeds in this case from the start of this case until the end of this case rudolph contended that it didn't do squat scrubbers an element of the coin that was required in fact it was the key element scrub testing when these pins scrape across when they're being tested they said they didn't do scrub when we got to trial they said witnesses say we don't do scrub we don't do anything like scrub then when they lost alternately after the jury verdict they sent out a press release  their investors to the f c c that says we're going to remove scrub which seemed odd in the sense they removed something that they said they didn't do during the entire course of the trial in the case and then when the judge was going to enter injunction rudolph complained and said whoa whoa whoa we need and friends now fast forward to the period of injunction they've been found to infringe so de facto they've been found to do scrub so at this point they're saying ok well if you're going to call this scrub then we need time to remove this we need time to fix our products but they were arguing throughout the day that what they did didn't constitute the infringing element only after they were it was found against them did they say ok well then we need time to fix and  first right that the that was reversed on a prosecution history stoppel argument and what i'm concerned about and this actually ties back to an earlier question you had this is basically allowing an argument that if you win on one issue that all litigation to justify your getting three point two million or chinese rather than some small amount is there's a stipulation up there so she didn't say no it's because it doesn't matter they're the fee should cover the entire period because it was  weakness in their position on the p r vector v x machines preety thousand and seven the second being their litigation conduct through trial and through the post trial and both of those she said justified a fiord under two eighty five in appropriate thing to do in this circumstance be to vacate in remand for her to provide the rationale if she has one for fees all the waste let me throw in an absolute we don't you agree we don't have in the record mind this is this is truly one of those cases that the supreme court referencing highmark where the judge lived with the case she's had this the thing for almost a decade the regional circuits say quite clearly that in awarding and so does the supreme court in a warning attorneys fees the judge has to articulate her reason and if i interpret the five bases she gave us all going to the pre two thousand and seven product and none of them going to the subsequent trial and everything else that one errant sentence that says they behaved badly throughout it doesn't get me there it doesn't give me something i can review under any standard even a very deferential one like abuse of discretion and let me also point out that even if she can't  attorneys fees for example to a portion of the case you didn't prevail why there aren't there are all kinds of alternative options like one hundred twenty seven roll a leavened discovery sanctions i mean she has her discretion  disposal heartland of possible ways in which to increase the number of the attorney feel ward if that is really warranted even if it's not under two eighty five did you bring motions on any of those other bases we did not bring motions based on hundred twenty seven we did you bring anything like a thirty seven b to say motion we did not that's a great question your honor because that actually appears in the blue brief from rudolph was taking i t c to task for not bringing up these discovery issues the problem with that argument is that we found out that these were discovery issues while we're sitting in a courtroom trying to case six years later that becomes a problem so no we did not bring up a rule thirty seven violation because mr shubrick submission that he actually tested and found infringement would have created documents first came out of trial first came out of trial so it was hard for us to go back and redo discovery at that point because we're at the midway point of trial i've always wondered about the results of a sanction of sanctions determination of fact honor it was and so we believe that within her discretion the judge over looked at the case has lived with the case and determined that of the full amount of fees was warranted in addition we had we bound ourselves to the stipulation and didn't go back on remand and say and i know the law students may like to hear this as well we could have asked for more we could have asked for a lodestar theory we were trying to do exactly what you mention which is avoid spending a million dollars litigating legal fees and when the judge saw the stipulation she in her that was in the briefing i think there was a question about that also to clarify there was some issue about the half of the damages or fees i think what counsel was saying about half of the dollar damages award related to the prio seven products in the vast majority of those sales were before the lawsuit was brought they brought the law didn't even go through the source code their expert didn't was not able to read source code they didn't compare the old device to the new there's very little effort that they put into that old product they seized on but they turned in their own briefing at admission by us that we didn't have first a contact based on that the court granted that's when we judge when two years before a trial the trial was only about products that wound up being not infringing it was already decided the previous seven inferentially had two years worth of his going into the trial that had to do with those cases that are those issues those products that they lost and now that you're under fire if i misspoke i apologize i don't mean to say that that doesn't make i t c the prevailing party in the lawsuit i only meant to say that that has a very significant impact on the support an issue but i'd like to know your thoughts on second term protection issue with regard to prevailing party if they are the prevailing party on one product but not with regard to the other suppose that she did and i'm not saying i interpret her opinion that way but those that she did demonstrate litigation misconduct throughout trial very detailed litigation miska would they be entitled to seize for that because they prevailed on that summary judgment point of the case but they weren't the prevailing parties so badly anything here and i agree with the core i think all these really infected by her original belief that those that change was notified i should let you know precisely what you think i know your red light on it will give you a chance to answer about the interpretation prevailing party there are lots of cases supreme court otherwise this is not the only statute in which those words appear do you think it's a privilege any portion of the case everything is up for grabs or is only stuff up for grabs in the portion i guess i'll have to look at or in my mind the statutory language of two eighty five in exceptional cases the prevailing party may in the courts discretion get fees and case law says that has to be apportioned so you've got a couple of checks on the system there one is does that make the whole case exceptional or not and if it's one out of five products or one out of four products that was actually found to be infringing early on i guess you have to ask maybe there was some exceptionality or something about the one product but if that actually make the whole case exception i would say not here when you look at that context and how much of the case had to do with things other than that original product design number one and number two you do have that issue that it may work for you not that it has to and you have to take into account the totality of the circumstances i think as well on whether you do award fees and how much of the fees your warden certainly comes into play within the four corners of two eighty five and your points raised on th the council did raise the courts and here in power at least because i know that in the decision of the footnote on page seventy two i believe they had a full and fair opportunity to reason raise those issues before your honor i think would be totally approach going to appropriate this late stage they had their chance to seek