defendants ultimately prevail i think what did you argue was the correct way to construct well i think to answer that question you have to understand with and reference to what how the court actually campaigned how and how we opening our position was that long yes was required but that other slight defamation could occur and and in the file was whether you were talking about the in of the strap or the body portion strap were were you suggesting that the end portion of the strap could be ordered in the limitation and the only applied to the body of the strap well that is that is my contention but it is a contention that is rooted in the actual claim which the claim language very clearly body could be through the holes here with only minor defamation my understanding that correctly that is correct and i think the basis for that is found in the language of the claim itself it refers to the main body fortune well mr harrington if you can how can you make the device work as the patent claims indicated they're supposed to work when you have one of the take it outside of the claim language and we think that it is not because of the resulting defamation standard for the end and for the bottom i'm sorry i missed the first part is there a different defamation standard for the information and and the argument that the district court was that the end fortune didn't matter and that it was only the body that was subject to the limitations judge bryson pointed out that that didn't seem to make a lot of sense in terms of the client so for the body portion what if your client and there is a different standard for defamation that is caused by the importation vs defamation caused by the main body portion what's the different standard the different standard is the one  difference that we're not here to argue that the district court erred on the question of its kind construction that that course is left also so it could be that the just follow up and the price was a question could be that in portion has a huge and it will go through or it could be a very small event and pass to usually but it sure relevant because the claims on are directed only to the the the main portion of strap portion of the of the invention and not the ends i think you've hit on precisely what i'm trying to say it simply does not matter now does that i thought you had said of the basis for that claim the basis for the claim constructions found in the specifications self which shows where are you this is  turning to claims six and eight what was the pre filing investigation that gave you a sufficient basis for charging is there are some language in that opinion letter that indicates that that a certain claim six and eight might be appropriate because two strikes together  manner now we have an underdeveloped record on the question of what actually have hurt with regard to the defense conduct well but that isn't that isn't responsive to the question of what you had done before filing to as your team the likelihood of infringement of claims section eight my understanding is you had no evidence with respect to six and eight contributary are engaged fringe of the claims other than speculation that perhaps something would turn up is that a fair statement of where you were on that i don't think that's a fair statement where we were at all i think the ok part did you have other than a hope that something would turn up well we have two straps and we have the ability to manipulate them into this configuration the construction of those straps suggest given the particular size straps were designed to be used and the visual similarities the fact that are sold in the same chance suggest that those activities but those straps are capable of infringing six and eight and that in fact they would be used in that manner because of the way in which we are sought did you have any any evidence at home depot sold scraps more than one at a time like two straps were kits of three things of nature i don't believe there's anything of record at this point i i do not recall that question and it's not something that has ever come up however it is not unusual it would not be unusual for that to occur i simply can't answer that question i don't think we have anything case there was no response filed the motion to dismiss likely and so it was granted by default is there anything on the record that would suggest a basis for having brought that evidence of actual injury that was what the district court found i believe that there was there was no showing of anything with regard to that client because there was no response but going into the case you had no injuries no evidence of actual injury which would have been a basis for asserting that playing initially there was there was no evidence of of an actual was reasonable the response to the response is that there is nothing in the patent or in the file history that indicates that any defamation of the openings can occur if you pass i don't think so it certainly doesn't indicate that an opening individual opening can be long given the with wise direction well it says it says right there i mean that's what it says talking about the strap whenever first of the figures you look at figure one problem with precisions claim construction theory is that they're not saying that the opening is elongated on the with wise direction they're saying that you can deform it by jamming another strap through it so you're not  you pass the strap through you're even getting as you pass a strap through so if it wasn't a dimension properly begin with if you have to jam another strap through to make it fit and the cord the guess understand your question the point of novelty in the pattern is that and they actually distinguish the prior art the hartman patterns in which the hartman patent taught that you limit the long so that the openings are just able to be used for you know attaching hooks the whole point of novelty in this pattern is if you need longer at the openings you can actually make them bigger to accommodate the main by portion of a second strap so there's  there's nothing in the pan indicating that you can dimension the openings by forcing another strap through well the problem is the dimension limitation would agree there is support for that and we're you know the claim construction is final and and not appealable so we're not stuck with what the district court decided they're not sure but the question is whether there are plans in structure was objective basis for that aspect of your claim so the best technical basis are all the references in the patent to the fact that you can you long gave us the open the openings in order to dimension once it set up for passage must be larger than the pledge passing through otherwise it isn't mentioned for a passage is that the essence of your your point that's exactly right  point is that the dimension element is a structural limitation of an apparatus claim it's not a method for enlarging an opening that wasn't big enough to begin with let me ask you this question shifting gears a little bit suppose that we should nonetheless not objectively unreasonable but that for example the allegations with respect to claims six and eight and the state will claims were unreasonable what would be the correct disposition of this  appeal and you're setting aside the litigation misconduct finding let's let's assume we set aside the litigation misconduct funny yes rather than the reference to the state will claim i would say that the feel more would still there was a plymouth or a construction of a claim the court denied the motion and then we moved for summary judgment to pretty soon after that and we asked the court to make final the plymouth our construction on claim one and then to similarly construe claim six and eight and the court tonight the motion as premature so claim six and it hadn't been the case our position is that this case could have been resolved much sooner but it doesn't indicate that a substantial amount of the legal fees that you're claiming here were incurred in defending against twenty one so how could it be that we would sustain the entire war if we only find six that heat in the state law points were objective reasons well the dimensions limitation was present in all of the independent claims so all of the work done to convince the district court of the proper construction necessarily was done and well it was the fact that we had to deal with a motion in the district court to basically go back in time and somehow make the appeal filing timely and there was a motion for miscellaneous relief filed by persuasion lang's and there was no authority from the district court to grant the relief requested but nonetheless we still had to oppose the motion and incur additional you know burden and expense in doing so of course we didn't seek any fees for getting that previous appeal dismissed in this court those were never part of any any of the fees  requested that could be bad from a strategy but how was that litigation misconduct it's i mean standing alone i would agree with you it's probably not litigation misconduct but what the district court found having lived with this case for over two years was that precision link made repeated assertions or frivolous additions missed several deadlines and you know requested relief that it couldn't get so this was a pattern of misconduct and i think taken all together is where you get the misconduct finding a pattern been or humans as litigation misconduct that's part of the litigation misconduct and maybe that standing alone wouldn't get us there but it wasn't just it wasn't just frivolous positions it was also missing deadlines ignoring court rules and and the like well the district court didn't seem to rely very much if at all on in the case of the notice of appeal fails to file a motion to plea and then attempts to rescue the problem the situation strikes me as falling short of misconduct that would be unethical or unprofessional conduct a couple more points that i want to want to made so i just wanted to emphasize that here it wasn't just a matter of there being no support for the plaintiffs claim construction the district court in detail reviewed the specification the plain language and the file history and found that there was the presence of contradictory support that was never refuted by her siblings the claim construction issue was not a close call it all on the subject of bad faith finding the district court found the precision link claim construction was so unreasonable that evidence bad faith that alone would be enough as further evidence of bad faith that found the  sliding the main body through the hole and with some deformity should the whole assume that that is a permissible interpretation maybe not the best  least a permissible interpretation of the plain language not short of being unreasonable then at least with respect to claim one take it there would be no failure of pre filing investigation i  that would be your your device if i got this great i don't know how you define flight i mean in a relaxed condition with of our openings is already forty percent smaller than the depth of the main body portion and when you're a long it the strap as called for by claim one with actually contract with the opening contract so it becomes even that you know much smaller when claim one it's reason one strap it does require us you know openings that are to mention for a second strap to pass through and the languages dimension for the passage there through a second str under under that analysis you might as well just get rid of the word dimension completely and have the claim say for the passage there through then it's talking about a capability that you can pass a main body portion of a second strap through but when it says dimension four it's a structural limitation on the you know size of the opening and it must and must be the right size before you pass the second strap through the right size and meaning to allow passage meaning that there is no doubt formation that it slides right on through and the claim just slides rodent through it doesn't say anything just a couple of three points i do think that the fact that claim one continued in this case after the district judge was invited to dismiss the claims based on a claim one any remand of this issue for further consideration would have to contain an instruction that says that the that the time spent for all of those claims must be case well i think i would challenge the the assertion that there has been litigation misconduct here i think there were some mistakes that were made and they were made by me and in some cases a war against persuasion links then that that needs to bear some relation to persuasion winks come i don't think that's consistent with the way we've treated let occasion this kind of sanctions and i mean we have occasionally made in the art and that a better understanding of having all than an ordinary practitioner i think to find that that he was chargeable with bad faith because he obtained those three opinions in agreement or deficient in some manner i think that i think that has colored the district court's view it is as it were there any opinions about six to eight i believe all three of the opinions dealt with that it does say that however that fully analyzed and did not analyze are two different two different issues now with the very they down the first opinion doesn't say that we think claim six to eight  infringement because the straps are specifically and explicitly designed to be used together what is the end of the entry basis for your concluding that they were explicitly and specifically designed to showing two straps working together but we don't have any evidence of that and then your declaration which you defended against the imposition of attorneys he certainly didn't put anything about any tag you're running out of there i'm totally trying to do that i'm simply trying to answer your question