thought the request for attorney's fees was based on  it was and that was briefed at the summary judgment stage of the proceedings and we were looking for invalidation and two grounds as i said so to disclose the police system and an obvious judgment position how is it now that you argue that you are entitled to further development of the facts here on the attorney's fees well first of all we made a couple of comments in  plaintiff's motion to dismiss first of all was the fact that discovery continued for another three or four months after the summary judgment submission and that additional facts had been discovered uncovered doing discovery  were asked to have the attorney's fees motion decided on the basis of the summary judgment papers why wasn't the judge intitled to you that he was but if it was not dispositive on the issue then we request hearing and we made that request in the response to their the plaintiffs motion to dismiss so you know the court did take up the attorneys fees issue and because it did the court had to apply the law of octane and it failed to do that in its analysis of the attorney streams whether it was based on the summary judgment submissions or something else court did not consider the totality of the circumstances the court did not apply the correct burden of proof talked about in equitable conduct only as an invalidating  precondition to an order freeze which would have been the standard under the books furniture plan of cases under acting the court was required to consider the totality of circumstances and of the preponderance of the evidence and what isn't again your argument the only thing you argued to the court was an equitable conduct entitles you to fees so what totality of the circumstances did the court not say not consider because the court considered that only under the and that the only appropriate standard for deciding whether to meet an acquittal kind of not every case of an equitable conduct results in attorney fees and rep should everyone even a finding of an equitable conduct so you have to first prove an equitable conduct to even get to a consideration of the attorney fees and once you've proven an equitable conduct by clear and convincing evidence only then does the court look at your proof under the punter and standard say in light of the proof of an equitable conduct procedure that should be followed under acting because then what's happening is the trial court would be back dooring the books furniture standards into the consideration of attorneys fees under twenty five so determination and equitable conduct the court wants to go there is they decided that sue a sponsor based upon summary judgments of submissions there was no cross motion for summary judgment here he didn't the and that's remember this case was briefed on summary judgment in august discovery didn't finish until october mr dove the inventor was in the pose and select over night so we had all this words it was a question of material facts that we should have a hearing and attorneys to question a material fact goes to mr dole state of mind and failing to disclose he filed in a declaration with the court that was on its face inconsistent he said he forgot about the drake installation that if i'm a prosecution or if i remembered i didn't think it was relevant so the court instead of court looked at all of the circumstances because we did not recognize drake as a section one or to be third party invalidated public use the court looked at drake installation and as a obviousness reference in the court said well that might have been superfluities based upon the reference to the vecchia patent application pirate application well when you get to the but for materiality test if this is a certain public invalidating use public use prior to the critical date which was contained in that was then this plan should never have been issued in the first place if that had been disclosed it would have been a forward and conduct an entire trial to determine whether or not there was an acquittal conduct and then only after the completion of that trial evaluate whether that ineffable conduct results in fees is your view that it's not discretionary that the trial court has no option that if you think there's a question of fact embedded in the deceptive intent of mr drake then they were he was required to apparent the district court's decision was well reasoned supported by the record and supported by the law as a result we respectfully request of the court affirmed a district court's decision for three main reason first the district court did not abuse its discretion when it properly a proper apply the standards set forth in octane fitness second the district court did not use the clear and convincing standard when it was determining whether or not the case was exceptional and used it in reference to an actual conduct which is the proper standard and the facts of the case or the unreasonable manner in which the parties litigated the case district courts may determine exceptionality on a case by case basis under the totality of the circumstance the district court will found that the case was not exceptional and denied this request for the first piece in a very well reasoned opinion supreme court precedent tells us that all aspects of that opinion should be reviewed for an abuse of discretion abuse of discretion  difficult standard to meet on appeal and although milton has tried to create legal errors out of isolated sentences in the court's opinion there was no erroneous application of the law and no abuse of discretion first this was argued significantly at summary judgment at summary judgment there were eight affidavits and fifty two exhibits that were filed the parties hotly contested whether or not it was invalidated third party third party public  and in most importantly the court clearly clearly referenced raikes talked about drakes cited to drakes and four different occasions in the opinion first at pages three in court the opinion the court references strakes and office site to pages fourteen to seventeen a mills this brief which is not just argument pertaining to drinks milk attempts to selectively deconstruct the order to arrive at the conclusion that because the court used the word material was only referencing drakes in an obvious analysis but this isn't supported by the record the court states at the age of three that the defendant specifically contend that don't fail to disclose a conduct one of two be and one of three and held that the case did not stand out was not of exceptional and under the totality of the circumstances not to have failed to meet the preponderance of the evidence standard second milt's not argues that in addition to failing to consider the totality of the circumstances the district court improperly used a clear and convincing standard this is simply untrue in and again reflects either a misreading of the district court order or conscious characterization of the order the quote that mr hockings is referencing is on page four of the record in the court states that the sentence offer no evidence and summary judgment that rebut this basic context within which the district court was referencing the standard the reason it was referencing this is because it's the appropriate standard for an act of conduct and if you look below that paragraph or above that paragraph actually states the court has little trouble concluding that this case does not stand out from other pat cases and that considered in the light of the caliber of the circumstances the defendant's case was so clear cut as to undermine article merit plaintiff's claim or its tactics in litigating the suit the final sentence of that paragraph the court states that on the paper record therefore this court will deny fees notably the district court had already concluded that fees were not warranted in the district court quoted the proper standard from acting fitness even if the court was using clear and convincing in reference to the one who to be invalidating third party public use that's the proper standard to review whether or not  invalidating under section one of two you're supposed to look at it under clear and convincing the court did that the court use clear and convincing to look at straight underwent to be one of three and a natural conduct found that rightfully so the plaintiffs appealed in this court remanded the case so that the parties could fully brief you know that our haven't a hearing on that but that's not that's not what happened here if you look at the order there's nothing in the order where the court hockey hopkins states that the cases we cited to in our brief were pre akim and that there was a full trial on the merits in those cases and he's right with respect to the cases but the other two he's wrong so in aspect standard for an act of conduct denied these without hearing an aspect there was a claim construction hearing in the motion they lost on claim construction filed covenants not to sue the court held that hearing was not necessary it doesn't make sense in a case where we file cabinets not to see the case is over for us to go back and have a full blown and it will be a trial it will be a trial we had affidavits there will be more than one or two greece in response to our motion to dismiss that the issue of whether the case is an exceptional case has been fully briefed by the party as such this issue should be decided on the currently pending and fully briefed and rejected motion or if not  positive filing trial you're right judge mark when you said that what they really meant was it's not dispositive in our favor the court found that it wanted to it was just in favor of else instead  this court as an avenue to get attorneys which is the improper for him to do so and this is a situation clearly under acting you don't need sanction will conduct they have an award attorneys of attorneys fees under such into eighty five and this is a situation where would be an equitable for counsel cases submitted