one thousand dollars total but under two eighty five for the patent case and those that are intertwined it's only fifteen thousand dollars that would be separate and non intertwined reverse as to the patent claims i believe we are because they were empty from the beginning and even if you reverse or sent it back to the ninth circuit and the ninth circuit disagrees with this interpretation eleven twenty seven  eleven twenty five one fourteen as to the patent claimants under two eighty five that would not impact the baseless ness of those claims as disposed of by the district  court and so i think the issue of whether there is an exceptional case under section two eighty five is right for determination by this panel by this court even if it believes that clarification by the ninth circuit on the trademark issue is why we're not simply saying that there should be a grant of fees on under the trademark statute which is interpreted now under octane fitness and i believe we agree on that  if this court believes that but i do the minimum that there was a good faith disagreement on whether what that statute means eleven twenty seven then i don't think that would be a bad faith   that and given the disc or district courts positions give me your honor that there was a basis there but given the panel's discussion here we're willing to give up our claim for attorney's fees on the trademark issue detailed declarations and that showed that the bulk of the fees were on that it was a patent case with the trademark issue and that's the motion to compel that's what that was about and it's only fifteen thousand of one hundred fifty one where it wasn't this overlapping work where it all could be recovered under two eighty five and so this was really a patent case and there were some trademark issues attended to it but the key question from the get go was well when we these fires came out before the patent issued weather and the district court found that there was no evidence whatsoever of a product after the patent issued that you are doing  for that portion of the i book that portion that is a large and what i'd say is on the range of this fees petition that eighty percent of that has to do with the baseless of the patent issues and i believe that that is right for this court determination and i think even if the court disagrees with the trademark and rules in their favor on the construction then the issue would be back for the district court to say well it was this a position outside of the ordinary is octane fitness which would suit she says so that there should be an award under the trademark clause in ansan brief you know there has been no claim of attorneys fees based on our position under the trademark laws and so that that issue even assuming you disagree with our construction there is no record on that we do have a complete record on the patent case and i believe that is appropriate to be cued up today because the issue of the  twenty seven applies to eleven twenty five and eleven fourteen is totally distinct from the factual issue raised by the fact that the district court acknowledged that there was not one iota of proof that there was any product case based on the flyer it was their product that was illustrated and there was no question of their product was covered by their but they had to show that there was that product out there after the patent issued well yes that was but you know on information and belief one can reasonably say that if you distribute a flyer at a trade show it shows a product this they did not get into that discovery but judge gelder x said in his opinion that this is an open market with trade shows so everybody can see what is going on and initially when there got to the appeal of that there was a fee or rather so that i believe that under octane fitness that there needs to be at some point an objective based case to keep going and if the court will reference that we did not seek attorneys fees from the get go here and while we believe there needs always to be an objective basis to file a patent case we understood that the judge jell tarts had some concern exactly as you're saying well we might see some smokier and so there might be some inference that something's going on but we did not seek attorneys fees until after april of two thousand and sixteen when it's undisputed that we had approached them and said we stopped once we saw the patent issue and nothing happened we put it on ice there was time for initial discovery and there was nothing and we said it is time to stop this case but they kept going and going and even after the denial of the discovery ruling they kept going and going they didn't take any depositions of their own as well they didn't even bother to take the depositions of my clients because they have their goal has been to stretch this out at some point what was that was that they requested discovery into our developmental products and it's true what we were we were coming out with in the future and they did this based on a trade show and before judge delta and it's in the appendix is a picture of that where you can see actually it was a change profile from what was in that advertisement so the only evidence was that in fact we have changed what we're doing and it's interesting because when they characterize what they saw in february in their own brief a number furring to their brief at page is that right i'm saying that yes we are given the discussion here that we will not be seeking attorneys fees for the trademark portion of the case and they're not seeking the attorneys suspect your honor i would disagree with that because i believe that in the first instance it's up for the district court to apply the octane fitness factors to see if what you are argument was outside of the ordinary an argument for eleven twenty seven to apply to eleven fifteen eleven twenty five and i suspect that because initially the magistrate judge and the district court judge agreed with our position that they're going to say that well maybe now we know the ninth circuit disagrees or maybe based on good argument we disagree with that but i really don't think that there is going to be a finding that our arguments were outside of the ordinary when there is this wind which in the ninth circuit and so i don't think it's a and copyright issues seeing the knock off brochure and e mail in september october of two thousand and fifteen acting reasonably to do what it could to this is and there's some other version or some prototype that looks different from the sure sure but still it's competing and then we've got it on our our discovery half of the point that mr about april two thousand and sixteen is six months before we judge the court denied a motion to how i discovered we were doing just like exactly what you suggested we were trying to get discovery to learn more about what's the product we never got to the product they were going no reason to take a deposition of thirty six order george excellent till we get that information a quote from josh eldridge saying the parties fellows are successful or persuade the court on the merits of the position does not render the parties motivations suspect period in appropriately cuts off that full full sentence obviously went on and on the discovery side they were successful with that procedure but that didn't mean that this case blew up and became so eighty percent of their time package just simply couldn't of our client's products in order to provide the reasonable basis we need to follow that path or to another part of why this is not an exceptional cares for another part of w to a trade show was pursuing evidence to show that this knockoff brochure was really intense there and they wanted to see what was what was happening and unfortunately we were able to get that but that does not make this some especially given their changes in position when they had lost that is emblematic of the fact that it was a good faith reasonable application and that the fact they changed it shows that it was a position that wasn't worthy of support and indeed i come back to what they've been arguing they never cite rescue com but they've been trying to adopt the rescue calm argument throughout without letting this court you know that and i believe that therefore for us to challenge that conduct  appeal is not a frivolous appeal and that your on our view and we believe given this discussion that we will not press on that but i think the corollary is not that are seeking fees on that portion of the total amount is frivolous by there is no what if i may quickly look back on the patent stuff and then i'll close my book the there is no evidence in the record but that is this in the briefs question there is let me just see if there's one thing acceptable all i would close with thank you for the extra time your honor is that the course of conduct was they did not respond to summary judgment on copyright they did not object on patent they did not appeal patent they changed their trademark only at the district court they drop one aspect of their appeal that is of the discretionary order here and so we've had to do a lot of work about what turns out to be nothing and for these reasons thank you your honor as we believe that it's appropriate here today under the the taking fitness to say that at least the patent case never had a basis after the patent issue and we should have had to spend money defending that we appreciate your time today i thank you