court basically found that there was no adequate pre filing investigation with respect to hayward's original infringement contentions you were asserting that pentair heaters had in fact  stainless steel tube sheet it was pointed out during the course of discovery in the case that that wasn't true yes they were to drop that claim they persisted claim forty six was litigated throughout throughout the rest expert's coverage in the summary judgment briefing towards the end in summary judgment hayward shifted its theories they were didn't seek leave to amend courts should not be second guessed every time they award fees and that we should be more flexible with respect to our review in the nature of our view and there and there was a whole series of cases where we remained  because the acting standard not apply but having said that once the district court applies the acting standard and does so in at least a thoughtful way as the court did here i think the message is also that we're not supposed to litigants to do him chose the court to do we feel for example on the advice not yet he doesn't tell us to do that it tells the district court to do that and tells us to read out for abuse for discretion and you're not arguing mean you're trying to argue a piece of discretion but really you're just arguing the various factors and telling us to weigh them differently and i don't see how we can do that under attack that if i just made fun you know with respect to infringement for example the court quoted the objective basis of baseless miss standard and that's no longer the standard and we had cited a number of post octane precedents where failure to conduct a pre filing investigation and shifting theories was enough to make the case stand out in on the written description issue ok the court found the defense to be essentially compelling on the claims it invalidate conduct took a look at precisely what the court castigated us for we think unfairly the court said well pentair did move the sanctions and that's a factor ok that's true ok sanctions would have only added to an already overburden in the attorney's fees motion you tried to make this look like a very very simple issue and that that's why they were never should have brought this case but it said that you yourself litigated it in a very complex manner of filing five separate summary judgment motions going into the complex detail saying particularly complex in the way you treated the right you want me to to go behind the district court on that sort of fact finding on a discretionary issue and you're telling this court on appeal that we should overturn that sort of fact finding on a discretionary issue your honor if i could submit that where the district court applied  wrong standard yes it's an abuse of discretion but this court can look under game are its precedents from last summer as to whether the proper standard was in fact applied by the court of course we can but but in this particular is a difficult analysis when you're talking about a disclaimer for purposes of written description it would have been a lot easier analysis of feet if you said that that their position was was wrong and claim construction shows how you lost one lot of a lot of particular arguments that a lot of the arguments you need weren't strong even though there might have been one strong argument for each claim you by virtue of taking on a larger approach which nobody could blame you in a litigation you've got and zealously defend your client and raise every position that you think is at all reasonable but the court said that that added to the unnecessary complexity of the kenny said that you lost a lot of those little issues damages based on latches because there wasn't that under your logic we won on every claim in every winner of every case has an exceptional case on their hands the fact that you actually won eventually on what at least one issue on every claim and therefore prevailed makes you the prevailing party it doesn't make this an exceptional case and the district court thoughtfully and thoroughly went through the reasons why  heard the last of this is just plain construction stuff a very complicated if you didn't win but the way it looked when about as it is kind of a very unusual way i don't i mean find it very useful for you to single out claim forty six thank your honour's we believe that the district court did engage in an exercise of its discretion below in denying to see request and that there was no abuse of discretion hayward at the outset of the case had  a reasonable basis to believe that it had an infringement claim and that's proven by the fact that the district court found infringement of claim forty seven by all of the accused products and infringement of claim forty three by some of the standard which it explicitly referenced in a footnote to deny the theocrat request here see the if you look at the totality of the circumstances  taken to the extreme but they kind of balanced each other out and if they did not make the case exceptional patent cases are often hard fought there were a bunch of tricky issues in this case and in the event  a hey were did prevail on a number of issues in the case it prevailed and it's quick construction positions it got dismissal of the inequitable conduct claim it prevailed in the x party reexamined it defeated s motion to stay proceedings pending the the x party releasing them and if it proved infringement of claim forty seven on on the undisputed facts and the they were litigation positions that there was certainly some behavior by pentair that the court cited as good complicating the case as well so it was a proper exercise of discretion the a briefs but not this argument also mention