and is based on clearly erroneous factual findings and i'd like to start addressing the subnets drink icon's arguments if i may they were your honor based on the text of the statute the specification and this court case law the court the district court believed the ronnie asli and statements viz opinion that icon's argument depended on proving that a stroke rail consists of a limitless number of parts but the district court agreed with icon that that structure was a multi part piece it says so in its summary judgment opinion and its fees first piece decision it said the specification clearly indicates it is comprised of more than one part linguistically there's no difference between more than one part and one or more parts that's not the reason i can last a stroke element so that is clear error on the judge's part an error of law i can't argue did not depend on that significantly opting conceded for more than nine months in this litigation that its  forty seven accused product had a stroke real how can it be an exceptionally weak argument when the other side concedes for nine months the element is present the district court also found wrongly found that dispute very reasonable disputes in means plus function claims about what is the function and what is the structure and here i can rely on the text of the limitations and the text of the specification which identified the structure that perform the noted function word for word rather so if i could point the court to column core of the patent so first i should start with the women taishan at issue which is on page  fifty and it's limitation one deed and it says means for connecting each stroke rail to the frame such that linear receptor came displacement of the first end  yes your honor and i can address that point but what the the primary assertion that i can made with respect to the this this element your honor was that the means for connecting need only convert linear reciprocating displacement to an elliptical path it didn't need to cause it now to be sure this court disagreed with that conclusion but it did so your honor only by reading in additional structure so in for word the claim limitation language is set forth at line column for lines twenty six to thirty the president which includes connecting the four connecting each stroke rail sixty six and sixty eight to frame twelve such that linear reciprocating displacement of first end of each drop rail and sixty six in sixty eight results in displacement second and so on it's exactly the same plainly in the limitation i just read and then it goes on to say the structure arguing with you would last for four she did say in her summary judgement opinion she said that but she recognized that the dr equivalence argument was not foreclosure on her so this isn't a case like it just a camp where it was clear that there could be no infringement after the claim construction and and the and the the patent she persisted in fact that's not the basis your honor that's not the basis for the for the feasible here so the basis for the fees award was that are meant was not grounded in the claim language in the specification but it clearly has and and this court's opinion on the merits the first time around expressly recognize and at page eight thirty one seventy four which is the slip up of the of the opinion this court's opinion on the merits competitors it's not two competing problems is part of that was never commercialized is that how does that alter the analysis at least for abuse of discretion standard judge years if you were to agree with us that these were run of the mill regular patent arguments that were not extraordinary we were weak in fact reasonable arguments that just didn't prevail which is not enough i think you would have to read to remain and at least because it colored the district court's view of the conduct she found but i don't think you have to read me out because i think the conduct she found is not does not warrant an exceptional case finding it is almost identical to conduct this court has recently rejected as sufficient in the check and decision so the e mails here the e mails nothing nothing improper about the content of the e mails if they had been sent by the decision maker which they were they were sent by a salesman of a subsidiary but even if they had been sent one decision maker who decided all they did was express eagerness at suing a competitor to enforce patent rights which this point korten checkpoint said there's nothing wrong with that motive and expressed confidence that icahn would prevail nothing about abusive this is this pales in comparison to the e mails in check and where the general counsel said we're going to make you believe and put you into bankruptcy nothing like that nothing at all nothing about causing them economic harm canonical about here notion this is different from typical patent cases i mean i get that but what i struggle with a little bit is all those typical patent cases arise from a regime in which it was incredibly hard to get  attorney fees beforehand and so we don't have a baseline of what is the new standard so how do we know whether this complies with the new standard or by comparing it to are young cases extraordinary conduct lying to the court there's an there's no evidence and in the checkpoint the evidence as i say was it was we are going to you know inflict economic harm you there's no evidence to that effect here and and yet this court held that didn't mount to that face so even looking at that but if you if this court were to find that bis kind of conduct its use a competitor suing the competitor on a patent where they're perfectly reasonable arguments on claim construction can you know post hoc looking back on it you can say well you lost you lost and now i'm going to look at these things like your choice of venue which are you this court regulars he's been you disputes the attitude of your pre if it sees a new competitor in the marketplace who seems to be copying their invention i get your arguments but isn't the problem that the supreme court largely gave that decision to destroy orders and not to us given the extremely d on clearly erroneous factual findings which you did here repeated lee because it misstates our experts has the money it it misstates the inventor testimony these thing it says we made arguments we didn't make this court is to review it and as as the supreme court said in the kurds like decision court see reasonable arguments all the time that come to nothing that does not warrant fees and if a district court a word finis that's an abuse of discretion it should be reversed that's what's happened here this this is a perfectly reasonable suit to brain it didn't when but that's not the test that's not the test and you're an over deter over deter suits if you word on facts like these there is no showing of any i proper conduct that the court speculated and made findings of things for which there is no proof and and fees are not warranted in this situation you ask about the linear  would like to address that if i may really quickly because this court held that our position was reading linear out of the way but with respect icons claim construction for that limitation was based on the text of that limitation which included both the word displacement and the word path and under this court case law when two words are in the same limitation you usually do not read them to mean the same thing our experts said linear displacement is a term  and it defines displacement when a body moves from one location to another we measure the linear displacement in a straight line from a starting position a to the ending position b regardless of the path taken that was the that was might my overall point is if you she said and she was considering the totality of circumstances i think if this court rules out even one but certainly if you pull out multiple of her reasons you would have to at least remain but i think all of her reasons fall my point on linear displacement your honor is that the linear displacement definition that we offered was supported by the text of the patent by our expert and by the extrinsic definitions that we offered that is a commonplace mode of claim construction it's certainly not extraordinary view of the district court's order that stands now our client with costs repeal is still going to be out about one point five million even with her award we appreciate that award we of course do but we're still out one point five million which means the net effect is our client has gotten no feel for this occurred through a procedural anomaly which we explained to the court in our reply brief in which we got no briefing before the district court judge on the denial of fees under the one twenty patent and the denial of fees on fees which that way so your honor again that's legal air this has never been briefed to the court we've now briefed it to this court there is no court that were aware of this court hasn't ruled on it the federal circuit's law governs here but we're not aware of any case from this court that discusses whether waiver can occur where we have a fee petition in our general claim for relief not just of the one twenty patent that we did not express the way and this court has not ruled on that issue so one patent goes away the case continues this court has not ruled and this is an opportunity for this court to clarify what its position on the law is we're not aware of any federal circuit case they haven't cited one so this court needs to say wouldn't you when the for this language just like that word doesn't say we're giving up attorneys fees is not enough the court has to look to the intent of the parties and because we didn't get to brief the issue to the court and never considered a letter that we wrote two weeks earlier where we said we were  operating under here so raby clark to my knowledge is not a case in that area it didn't deal with any kind of a presumption of what the court found as one one claim was dismissed but excuse me or i'm sorry discretion the footnote that the referencing from the high mark decision highmark says all aspects of the fee determination of exceptionality determination are under the clearly erroneous standard in icon's opening argument i'm not sure that i once heard them say where the judge committed clear air in her finding i have read many of this court's decisions following octane and this court has held that it is a highly deferential standard and absent this court finding clear air of this clip this court has not reversed in this particular case i can understand that if there was a claim construction a few ruling based on point construction and that it went up in this court disagreed with the claim construction that is a matter of law that might be reversed that's not this record this court has  the finding in full not only did affirm but as to d c channel argument this court called it without merit it's a matter of black letter law that where you say linear reciprocating just got the error i mean i don't think you're addressing your friend's argument for the whatever you're calling the flight or whatever that's not right that's not what they are hearing is the court found that in your opinion this court found that they were arguing one or more parts means an infinite number of parts and in this court's opinion in two thousand and twelve affirming it this court recognized the district court's argument that regard and actually acknowledged it that's in the record this court has also found it and just as a matter of english language one or more means one ten twenty one thousand and the district court found that one reason we're talking about a pattern where one goes in a straight line and see channel and the other goes an elliptical path and so the invention was the linkage in their position on the merits is that their linkage can  be one ten thousand parts one or more means that the district court rejected it she found it unreasonable it is an unreasonable position where your invention is a specific thing where an examiner finds the reason i'm giving you a pat is it goes up and down in a straight line and there's a c channel that causes that we got there inventor to admit in deposition that yes you need to see channel because the up and down my inventions up and down and you need to see channel and so there is no evidence to suggest that the up and down motion or c channel was not part of the invention that's all that's disclosed in the seven ten patent our client doesn't have anything remote to it so their position when you add their positions up you don't need straight line mov even though that's what the examiner said was the reason for allowance that's all that's disclosed we don't need straight line movement we don't need to see channel in our stroke rail is any limitless combination of parts and i would ask myself what could my client do they won but if t avoid a pattern where their position is that my invention is a limitless number of parts which this court found it's right in your the federal circuit's opinion from two thousand and twelve how could i con are to me octane avoid a lawsuit where they say the seven ten patent comer's a limitless number of parts in linear movement in a sea channel is not required that's basically every elliptical machine known to mankind that was their position and so no  a rare case i'm not aware of cases where not one of their people it if i can even knew how our clients machine worked not one of the inventor the in house counsel not one person knew how our machine want our machine which was covered under a different patent with a completely different linkage system didn't have straight line movement didn't have c channels when you looked at the rocker link the rocker link pivots down here there's another pivotal connection to the actuator casting which is what they call our stroke rail and it went up and down in an accordion fashion i mean i'm not here to say this is a design patent case where you can look intel but when i'm sizing up case one of the first things i do is i look and say well here's what we have here's what they've got this looks bizarre that they're going to their invention any more different than the seven ten patent and when we talk about how rare it is it took them two hundred seventy hours this path you can read in an hour and you can figure out that it's up and down in a straight line to see channel it took them two hundred seventy hours to find the seven ten pattern if you think about what is two hundred seventy hours that is a lawyer working seven hours a day twenty business days a month so that a lawyer worked approximately two months to find the seven ten patent which was a ten year old pattern that they didn't even know about and the principles of operation are different in our client the only reason they sued the only reason they sent these lawyers on this two hundred seventy hour go find whatever you can  because our client was competing against them successfully with an award winning machine at the end of day we're all here to believe that it was a reasonable case where they had a seven ten patent i have the inventor admitting it doesn't work customers didn't want it was too complicated  somehow that patent covers an award winning machine that's licensed under a different patent when you look at that pat you can see our clients linkages shown right there and somehow the red flags that go off if i was icons management somebody said you know we have this ten year old pat nt doesn't work we've never used it and we're going to say that's the basis for a claim against octane the small startup company who's taking market share with a completely different product and we're going to say that that case doesn't stand out now at the end of the day the district court's decision is grounded firmly and the claim language the specification the inventor himself that made it what the invention was and there's no dispute that we didn't have anything like it i mean the inventions couldn't be any different and assessment of strength this court affirmed her and fall all that remains on this record which it mentally is not the normal record might come to this court but here this court's affirmed everything it was to the district court sound discretion to assess the merits of this case and based on facts which are a lot it was a bad case it should have been brought does that mean it's rule levon no that's not the standard this court has also found the new standard substantially lowered the threshold for getting fees and if this case doesn't qualify i'm not sure what would we literally didn't have any element of the core out that we didn't have the stroke real literally we didn't have the means for connecting literally we didn't have the means for selectively varying literally to have not even out of the doctrine of equipment and again i i would ask myself what would what would octane do if their position is my linkage my ipad linkage is any combination of parts and the point of novelty as found by the examiner emitted by the inventor doesn't exist according to them in their expert who contradicts the inventor they say that straight line in c channel doesn't matter in my invention is any collection of parts it reads on every machine  if that's what the coverage of the seven ten was reasonably they could have sued anyone and yet our client didn't come close to using what they had so but the district court has issued a one thousand page very carefully worded opinion she incorporates by reference and footnote one her prior claim construction her prior ruling this court has affirmed the court this court itself found that their argument as to the c channel was without merit and it is black letter law says that if the function is linear s displacement you've got to have structure the corresponds the pattern is absolutely clear what causes it is the c channel even more remarkable in this case is that the inventor admitted it the inventor said yeah what causes the the up and down movement is the c channel and we have nothing like that a rocker link isn't close to a c channel that the standard is insubstantial difference was it unreasonable to contend all of these things were insubstantial yes it was we would ask this court to consider the errors of law because it's as if we have no feel in our client battled this for nine years and we're still out one point five million we've never had a chance to prove the issues to the district court on fees on fees and one twenty and she committed clearly and when you  find the trigger that means you're entitled to fees or you the court has discretion i want to overstate the case but you should be getting fees for pursuing your fees otherwise you defeat the purpose of the statute so even this court there since did not hold that you have to show i mean there's underlying case was exceptional then we should have gotten our fees and it would be up to the district court to explain why we would get all of our fees i think that's the law under gene and what gene says your honor what gene says is that for example the on the means for connecting i con had a strong argument based on the text of that limitation and the specification that the structure was limited to the crank this court recognize that it was looking elsewhere and and adding and structure that was not specifically called out by the specification different opinions from this court suggest different ways to go on that your honour's that is a reasonable argument and despite the linear displacement argument we had a strong argument based on the text of that limitation that displacement and path were not the same i invite the court to read the inventor testimony that says if you do that you've got nothing i've got a pile of steel i don't have a mechanism he's not saying the c channels essential to my invention he's not saying the c chain or something like that something like that  but the c channel under icons construction which is again is the same discussion i was discussing i can have a strong argument at least a very reasoned argument that the c channel was not required by this limitation because the limitation was about connecting in such a way and the district court added words added words that limitation by adding to calls and counsel has said it's clear it causes and this court agreed with that and so i understand that we lost on the merits but losing on the merits is not enough the supreme court made that very clear and that's all that happened here that's all that happened here the inventor the inventor called out to to the  that is perfectly proper reasonable priest investigation just like in checkpoint oral oral unions are fine this court has never held that more is required we were going to comment on the cross appeal really t quick points your honor the stipulation couldn't be any clearer it says any and all claims of both parties with respect to the one twenty patent this court found that they waived under the eighth circuit precedent finding is whether whether you look at  made really clear in her motion and in response to their request to follow should reconsideration i have great discretion great discretion to decide the quantum of the award and given that i find it was really reasonable for icon who had prevailed before me under the longstanding standard prevailed in the federal circuit under this court's longstanding standard on fees to defend that decision in this record and not to shift the fees on that and so i decided not to ship the fees on that you don't have to decide whether or not you have to find it separately extraordinary or not because the district court made clear that she was deciding it in her discretion to set the appropriate amount and she indicated they've still been awarded a substantial amount of fees we would i'm sorry that sounds like i'm a no no i'm sorry i'll go right to the cross to be fair enough so on the cross appeal the first thing i would ask of this court is to look carefully that we didn't get to brief any of the issues on one twenty and fees on fees and i would think it is a piece of discretion once the court became aware of the unanimously that occurred and her order to the to our reading still is that she was a working us fees and all that we had to do was submit our time in the reasonable ness that's what we did in their reply to that they took on the issues of one twenty waiver in fees on fees we never got a chance to respond to that and in our view that's a piece of discretion we think as a result of that abuse of discretion there were errors of law that should be briefed to the district court the first instance cited the court cody that we agree with her on the wall that we care if there's more ground if you agree with her on the law then i would say that to me sounds like harmless error because you've had our briefing so i would agree that if you're going to if you're going to say that that exceptionality is required for the fees on fees stage which is what she found and then when she ultimately said their conduct was reasonable that's the same thing as if nothing exceptional if you agree with that proposition then i would agree if you don't need to remand we think that was an error of law we think it is in direct violation of the supreme court's jean decision as to the one twenty this court has not ruled on what happens when one thing goes away and we did not express fees i'm very sympathetic your honor when you say all claims i understand what you're saying that what i would not cover attorneys fees we cited this court many decisions in our brief that deal with that issue that say unless you specifically waive fees which we didn't then it's not covered silence is not enough so it should be remanded to the district court to determine whether we intended to waive fees my final point would be i don't know how anybody could think that we were trying to waive one hundred twenty five thousand in fees applied to the seven ten pat and that's the net result here is that for example no matter if the one twenty pat was in the case or not the seven ten pat was in the case the whole time she ducked and half of our fees for the venue transfer work that she found was unreasonable we clearly didn't intend to relinquish that