responsibility to ensure the frivolous cases are dissuaded and then and octane fitness the supreme court instructed the exceptional case to terminations under section two eighty five as one where you look at the substantive strength  unreasonable in it and which the manner the case was litigated and here is where the district court there it failed to properly evaluate the strength or the lack thereof plaintiffs lose spikes patent infringement case court the court made a lot of disparaging comment we see in these order and granted the discussion section is only one page long is a comment about the conduct being less than ideal the less than ideal evokes just a memory of plaintiff counsel having some conduct that wasn't perfect  provide and describe every single assessment it does it does actually have to salvage it did look at this under a totality of the circumstances now we do have a situation we think on the conduct side the district court didn't go back and look at all of the orders they previously functions for every limitation of every claims found that the fish n c is actually what led to their case being struck and dismissed with prejudice as opposed to their litigation conda and that's actually one of the issues that we see missing in the fees order and if you look at the magistrate judge poorly in her order analyzed this and said the evidence you brought forth to provide even the notice function fail your exhibit that you rely and don't even refer to the accused products you don't have a basis for accusing any of these products  the defendant to engage upon yet the sanction of just in entering judgment with prejudice doesn't accomplish the function that the supreme court has established here and that's when you have a plaintiff who brings a case which is now going to salvage has no technical merit out of the gate essentially do claim construction infringement analysis all of that even though she did that this missile affronts so i think that's part of my problem is that you're asking the district court to engage in something that she short  by saying the allegations word and you are pretty clear we don't believe the district court needs to engage in a claim constructions these contexts are reanalyzing infringement or not infringement side of the case but we thought the district court should have done and failed to do and as is instructing the just a campus and they're all child is go back and look at what was the single issue that the photos of the case what made the case dispositive and i was actually the lack of allegations the lack of factual evidence to even provide that notice function certainly helped lead lead to the dismissal of prejudice as well as actually the arguments raised hearing before the magistrate judge magistrate judge corley determined that a number of questions that she posed to blue spike and asking about their basis for their direct infringe actually the print with prejudice part already applied during the motion to strike phase because some of the allegations brought most of the allegations brought by the plaintiff like any factual basis whatsoever failed to accomplish notice function yes trying to district court then came and dismissed the entire case a case with prejudice in part based on this issue of the lack of technical basis and infringement contestants but also in part based on the conduct and in this record actually noted but not in the fees or in the context of the order dismissing the case with prejudice and here's another instance where you think there might be an error the district court noted that as of august two thousand and thirteen in a footnote that plaintiff lucite put it dismissed the case that they admitted they were on notice the weakness of their case at that point but they chose not to get that fact and not fees order it seems to miss the most important issue in the case and that's the inadequate pre filing investigation here that's for borne out in the infringement contentions that was struck by the court so when we get to the fees order there was no discussion at all about she applied wrong standards you know we did make that argument our opening appellate brief that in looking at her fees order it appears she did a brooks furniture type analysis a very rigid is there an objective basis next to the infringement claim but i think with the to dismiss the case because allegations on their face were in any way syria yes and now you're saying i should go back and do all of this detailed technical analysis about what the case might have been like had say really been it been able to go forward with the case have we come forward and her point was i can't i can't do that i see if you ask me to dismiss it because on a space allegations were inadequate so i can't really go back and say for sure that they could have never had any ability to assert and infringement if they applied better and that's pretty much what you're asking her to do that's like asking her to to do the whole case when you asked her to get rid of the did not have to go back and in fact we thought it was fair on the court's part to say we had to go back and look at whether the products may infringe or not that's not the exercise judgment had already been entered a finding it already been found that the infringement contentions were dismissed with prejudice there was color basis for infringement and asking should do the accused products infringe or not there's actually three layers of error there first of all there is no concession on our part that there is any infringement by any of the products waiting to ask for limited discovery on that issue  didn't force the issue should some of the delay be attributed to your from your duty to try to resolve that particular issue that would have been dispositive you are we the opportunities we had to present evidence were limited actually by the history of this case but we did at every opportunity for example in the context of our transfer motion we submitted a declaration from the person most knowledgeable at adobe who previously worked at audit today and provided that information about different lines of products i'm going to yahoo reason alone have led to some ability to assert in print your honor no actually it does not provide a basis for infringement assertions because we've seen the totality of their technical evidence about how any product they believe reads on the claims and we had to exhibit the don't refer to products we have exhibit as a magistrate court found that don't even inform on the limitations found and every claim doesn't actually matter what products to spike ultimately try to accuse and they move that targets throughout the case there done and factor that into the seasonality as we think that's missing from the fees order like a reserve my time for any time for a bottle magistrate judge your honor on i think that's a great great point and in the way you know that is because of the evidence before the judge the defendants in this case submitted thirty five exhibits and those exhibit some of those are already in six so i counted twelve different instances that really stood out in my mind terms of litigation condo and things of that nature  something that could possibly fall under octal and i don't see that the district court addressed any of those other than maybe and past one of the things the magistrate judge did not hav that she did not know at the time that the district court judge later did you know it's that we were trying to work with adobe to address their concerns we had worked with google and other transfer case to do the same thing and we had been able to work it out and what happened was with adobe with a record the record shows that adobe was contacting you and bringing up this issue with respect to ownership of the technology and we weren't yahoo where they sold this technology they said they didn't have any more they sold to do yahoo we had settled with yahoo and i actually put them in contact with yahoo's in house counsel and said look guys they're not saying no to these folks they're not saying the same thing you're telling me that it goes we should look to yahoo and that's just not the case i mean yahoo saying that they have nothing to do with that why don't shoot just show us the agreement so we can one of the things i learned when i was kept in the army you know you trust but you verify and all we asked was to see the documentation that supported this attorney argument that we say we gave it away we don't have it anymore and what really started to push the issue  what you were arguing that if you wanted to see the source code well before that we want to just see the agreement like two years before that we two years into it because they didn't have the source code that would have been nice to know two years before but two years before we just wanted to see the agreement were they say that adobe sold it to yahoo and we don't have that anymore now i know and some of these declarations just like well thought out of tune since some of it into now it's very confusing and we just asked them to give us a look at that document because yahoo's in house counsel isn't saying the same thing and we had just resolved the case with them for i didn't want to say of third party discovery on the front of the other sites that the court order inadequate we had all reduced the number of claims we had reduced the number of products down to one that's forty two claims of the times five patents and and and so we we were already narrowing it down like they wanted us to and what she found if that was appropriate remedy in this case she threw far take moved with prejudice to dismiss not only our claims but also been granted them the prevailing party we paid them seven thousand two and and she had all the settlements this talk about there were nuisance value none of that was cooperated by the evidence none of it was even provided to you to look at and she even cited in the her order itself that it's  reviewed for you for discretion when she was coming up with a rule and she did offer this one to point out real quick that she took into account specific information that was part of her record at appendix thirteen sixty eight thirteen seventy one thirteen seventy eight and for two no one the first human person with thirteen sixty eight and i guess that we didn't have what you're saying is it that  habit a local rule that require you to do such funnelling and just realistically presenting the evidence to a jury you don't you know only need about four or five claims when you're when you're done when you get there otherwise it gets boring one hundred would that when when everything went sideways with the with the google her ruling in the companion case with google that all the claims were invalid of that particular  thirty or forty claims there and so at that point we decided it was probably best well actually before that we decided once we had a ruling in the magistrate level and she said it we're not going to be able to own decisions that they want to sit up here and say that they're bad and and not allow you to make that decision you know the court had them though they were exhibit that judge gonzales rogers had and did consider along with  the the pages that i pointed out just now and also the fact that there were things in the transcript made by the magistrate judge when exactly that you know there was little bit not accurate i mean some of the exhibits that were included such as appendix thirteen seventy two thirteen seventy one thirteen seventy eight it just talks about how the g o p is committed to altitude product lies w very committed to our two product lines and we continue to invest both in karen maginnis as well as creating in indian solutions so adobe this is got their emblem on it everywhere it was it looks like eighty four dash thirty two at the top hear it came out that that they didn't have the source code anymore and we asked them when did you lose it or when did you not have it because you had it at one point because you sold it to yahoo that's what you're telling us now the case started in two thousand and twelve and so we have just a simple declaration from the i t guy that says that the kind of back up you turn your argument we couldn't get that so those are just simple things that are just give it to us and we could've walked away the agreement with yahoo for example we just wanted to verify what they were saying you know trust but verify and we i could never get that cooperation and i think that shows in some of the correspondence that that i that court had in front of  time in february twenty fourth scenes we didn't see that weakness a lack of technical basis and as soon as we saw that we gave notice in april we gave notice in may that we get in those again tonight over documentation of the transfer of the technology yes honor in the form of the we do not provide that to them your honor but that's actually not the reason they lost because the reason lost the case is they have no technical evidence they can't show you where the abstract is in our products they can't show you how the abstract is compared to anything in the database none of the exhibits they just cited thirteen