the last case in which we will hear oral argument this morning two zero zero nine dash one zero five which tale versus how  same court about two weeks ago after the he says that the burden is on you to show harmful syrup and i don't see a word in your briefs about what benefit you would have him from the able to follow the motion you addressing that but that we didn't understand that to be there our burden at the time we brought the appeal and the time we did our part we believe that the mere denial of our due process right to seek fees is to bring an appeal of that had instead of bringing the appeal brought a motion in fourteen days waited for the matter to be fully briefed waited for education  and the counter claims and each party bearing its own costs and your response saying that's fine except we want the opportunity to establish and tighten the two attorney fees and costs appropriate way to proceed but here the issue would already been decided at that by the judge that's correct and why didn't you describe to the judge in the opposition and three of motion exactly right we are having the principal difference between the two orders that were presented to the court and by the way initially which joe had asked for a stipulation we were fine stipulation as long as it didn't preclude our right clear crystal clear to the court that the basis for opposition is that we wanted to preserve our right to seek peace we didn't prosper a showing for what our justification writers are to tell them something about seek leave to file a motion for fees i think that are most of the fees and costs it isn't tied up to perhaps the want is not an entitlement but the right to seek fees is something we have as a matter of right we should not be put in the schedule we felt that was appropriate of course the court need not have adopted our briefing schedule on the court could have been silent and then we would have been left with the fourteen days into rule fifty four but the court to the third thing that was to sign the proposed order provided by which tale which on its face said fees and costs there are side each sides to bury their own and that is why we brought this appeal and i think i hope i've addressed the issue of why we didn't file a motion for fees because it would not have been fully preaching till after the thirty day time it run to bring an appeal of the order and we certainly simply couldn't that you should prevail or you have to show that you were prejudiced by the action or all sorts of action taken the course of this record proceeding the mayor or or may not be correct but in order to get a claims that were made by which tail below the express limitations that were in the patent in suit and we had well before the actual well before the claim construction briefing was done we asked  f please show us where the where the infringement is it's simply not there on its face and we received no response and so the client our clients put through this costly our second point is that in this particular case huddleston delux unilaterally assumed that judge folsom had preempted them from accessing the room fifty four days procedure i think it's without question that in order to occur tourney's fees under section two eighty five a motion for attorney's  not is force the attorney's fees the issues concerned i mean it's the court knows and in most of these cases you get a final judgment and then you have the fourteen day period of time or that can be extended on motion or sometimes local rules even extended beyond fourteen days but the purpose of that is to file your motion at that time the first judge the most appealing motion for attorney's fees does not affect the finality of the first motion and so whether there's an appeal or not the original judgment the once or motion for attorney's fees is timely filed under rule fifty four day attorneys fee and whe case you had the back and forth which tail agrees to dismiss its case huddleston agrees to drop its count of claims but they say  heating costs and they come before the district court and they say we object to this proposed disposition one suspect we want to assert fees and costs and cleans you is correct as a matter of law as a general proposition but we have a little bit an unusual backdrop here don't we in that can it be severely said that they put the issue before the judge by saying we want these and cost limited way i don't believe that they properly put the issue before the court and that is the roof fifty four march but why was this not a substitute they're saying look the case is go submitted fifty four he just flat denied it well i think this is setting a bad precedent if if the court finds posts five or because i don't think that judge balsam had a fire suddenly i guess from their briefing although this is not explicitly stated that that there is there is some sort of a act there's harm in the abstract byelection of the process right i guess that's what i'm trying to read into their br as as the harm here that we've been denied procedural due process here this thing we did we were given a chance to assert our playing repeating cost and i'm sure the judge and in a filing it's that page two eighteen in our appendix which took the position that we're killing from quote a failure to award attorneys fees you know what would you tell the judge what the basis for an attorney and record would have been and judges are busy now they'd like to know what you know whether there's a substantial question why didn't you tell them what the basis for the request well to be frank your honor we thought that again thank you and that includes morning sit