i didn't get to say thank you very much the enjoying shares which was the wave two point one in anything other than the fridge share configuration i think the language in the contract of the settlement agreement was quite clear a paragraph or two says it shall not sell th they give them a penny a pound it's a plastic chair i guess i wouldn't be here because it and sell it to a competitor you know a customer of ours i mean obviously that's subject matter covered in the settlement agreement they took off the legs and the base of each chair and sold it as a seat on the floor when that violet said no because it was a client and not object to the convert ability of the french hit the the settlement was all about the rock a rail train the the picture of the fred chair this attached to the subtle lever leaving aside your argument about the remove ability brought the picture of what they proposed to do to the settlement conference which was exhibit c to the settlement agreement how does it violate the settlement agreement if they keep use it as a rocker chair they weren't supposed to use as a record chair that was the reason we let them not scrap the existing inventory they had nine hundred units we're not saying they can't sell racketeers they're saying the nine hundred units that you had in your inventory on the date of the settlement scrapbook and they said can we is part of our design patent which we got an injunction that they cannot do no one knows that the chair doesn't decouple until they try to separate the two it is mr bontrager testified at length that you have an entry hearing that a key factor in him was not to convert ability but was the building of this chair to look like our product and that's the reason i wanted to take the deposition of the university of virginia because we don't know that the product actually delivered to them actually had the planet and the university of m injunction well it then you have to accept it and judge that harry said that the well the settlement agreement says you can't sell the wave two point one now you take the wave two point one and you put a pin in it so it still looks like the wave two point one you just can't decouple it our position is that's not enough they can make the settlement we're going to cut the wrecker rail off we're going to make four stubby legs so that's not the wave two point one you can sell that you can sell your nine hundred units that way i mean how is it any different if someone bolts of door close and then sells it to a customer and they unbolt the door and they use it as a patented product that is our objection here they weren't supposed to sell the existing inventory with the rocker oh that's the to something else they're still violating the injunction in preaching to suddenly when you know you're correct the judge still we can start a nd patent infringement case when you contacted the university of virginia when they say we didn't contact and we could ask the court with discovery contact them we wanted to go take their deposition we found out about them in may we had evidence or hearing in october i believe it was i understand what you're saying i said we want to go take the deposition they didn't want us to interfere with their watching their depositions if nothing bad  contact them out we didn't ask for permission to contact them we don't want to interfere with their sales contracts either we want to have that issue facing us by kind of taking them and breaking their customer into the litigation without st going to depose them yes and  think that's less disruptive well we didn't have an argument you were appealing his order by not allowing us to take the deposition or get the scot free directly from the university of virginia because we don't know it's st off if they're selling the way two point one share to them as an assembled unit they have to buy new cards because these things come back down they have to be assembled and it's very easy to remove the pen we saw the video which is exhibit thirty three i believe well proceed with the discovery against the rd party university of virginia as i say we don't know that the university of virginia didn't remove the pin and is using the waves are now if the university of virginia remove that pen and they took all those bench areas and put it into the existing inventory of the wave chair and all the college dormitories they got a got that two one hundred and fifty dollars chair for ninety nine dollars and they're using the wave chair because there's no dispute that the pin chair is identical in all respects both in said if the university of virginia and then he went off on this parade of horribles yes i mean aside from the sale of the chairs how did they violate the settlement agreement they violate the summer because they're selling it and you know i'm authorized now look i'm sorry sign from the sale of the cheaters what's the violation of the settlement agreement with respect to the sale or the other any violence ok the other issues we bring here is they didn't delete all the images and references on the internet to all the enjoying charities so the only contract settlement only requires reasonable efforts what was  reasonable about what they did why was it not reasonable because they hired a person who it's all outlined and about twenty pages of briefing they had mr shoemaker just look at this own web site they didn't go to google they didn't go to collins didn't fall that what i'm sorry didn't hear that there's no testimony that collins didn't follow up with rd parties there's no testimony that they didn't contact the rd party the only testimony is from good morning your honors may please the court my name's tom de veau i represent university loft a company i request reserve one minute to cross the long term ok so so as as we've already discussed here the issue basically different version it's convertible it's not covered by the settlement agreement if it's a non convertible chair it's not covered by the settlement agreement and the court correctly found as a matter of fact the pin share does not qualify as a convertible chair there is a fixed sha and that's what the facts established and that's it we're not here to really get that issue today or we shouldn't be here to really get that issue today could both parties prevail know both parties did not prevail this is a contract provision that says the prevailing party shall be entitled to their attorneys fees it's not a statutory provision it's not something it says made in the court's discretion something that was bargained for by two commercial entities that have equal bargaining power and it says the prevailing party gets her attorney's fees and the court concluded that university aloft in good faith complied with the agreement in full and as a result it was the prevailing party and there is no dispute about that in a factual dispute about that you say as a result of tort found it was the prevailing theory you know the court found that there wasn't a prevailing party in its reasoning with this was that both parties are prevailing in the sense that the lawsuits over well that's not that that of course completely subverts the idea of a prevailing party standard for prevailing party you know while i believe our brief says that it's abuse of discretion no no i mean what do you say how do you know which party prevailed on your ohio law to cases say that the cases say that we case so it doesn't i'm not even sure it really matters what that what the standard is in terms of whether you win ten percent or two thousand and eighty percent seventy percent or fifty five percent even one hundred percent where there's an attorney's fees a judge has a lot of discretion because they're right there johnny on the spot and they're able to look at both parties you know and at least some time that trial judge  didn't or there some of the claims were brought in and there was not we didn't prevail in all of them but in this particular case universal law prevail in every claim and so so i don't think there's any room to say that the judge in less unless you're going to say the judge retains discretion without having to reference any facts or doesn't it retains discretion apart from that you know the parties have agreed that prevailing party wins their fees but but the judge can just decide without any reference to fact that can just decide that i'm not going toward those fees i would say that is maybe the one instance where you go beyond somebodies discretion you are abusing your discretion ours is the situation where there really is no room for well if that's the case that's conjecture because the court said that the university aloft in good faith complied with the agreement and this was in the face of allegations of deliberate will for i mean really some some pretty hyperbolic types of allegations when the judge came to the exact opposite conclusion the judge said there's no deliberate violations here there's no you know willful misconduct here in fact there's good faith conduct here they did everything they were supposed to do under this agreement and yet they're dragged to this to this form again and  r on appeal and so so in that situation i do think it's fees are warranted and i think the judge's decision that both parties prevailed and since the lawsuit is over really is not a standard because it's that's true in every by opposing counsel it sort of counsel in terms of of the pincher they said you know picture well the picture they present is half the picture ok the picture of of the train chair which is sort of chair in university the law office convertible chair the wave chair there's really two pictures there's a picture of the office chair and then there's the picture of the chair and it's detached form which is a which is really what this case is all about is about a chair that is detachable if it's just an office chair even if it's got a rocker rails on it the don't function that's not this case ok this after after mediation and the court rightfully found that look these are two competitors getting a customer involved in terms of formal discovery that is an issue and and then also said well universal off we're going to make you produce every communication you have with your customers on this issue and we did and there's no allegation of the contrary and the court said through those communications sautter can can determine whether they think this is a farce or not and clearly it was not a farce so in that respect again there was full compliance and there is no need to reverse on the discovery issue in terms of the removal of the images and again s all through the case and even its appellate brief was that we did nothing i mean they literally say we did nothing to remove these images and that's just not supported by the facts at all and they hired an outside sautter spent a lot of time seventeen hours trying to figure out if he could find additional images and he found some and he presented it to university aloft it was an exhaustive list it was his list and they removed all those within seven days the room has seven day period no violation of the agreement but they didn't stop there that should have ended the case we shouldn't be here right that's what the original complaint was about that we shouldn't be here and then they went out and spent dozens of more hours trying to find addi images going through a side door in university last and basically into its upload directory and the issue of the modified share that didn't come till later until they'd done discovery actually university off to actually judge you've already said if universe often brought it to their attention maybe it could be resolved i actually brought it to their attention in our response to their notice the st notice and said please understand avoid the misunderstanding here's what we're going to do with this chair we're going to insert this pen and disabled so they were federal records it is in the and ninety and ninety one and and in that response there is a paragraph that says please understand to avoid anything in the misunderstandings we're going to make this a and at that point there hadn't been a sale to university of virginia or university of dayton which is basically where this inventory went you know another point to be made is sort of the academic nature of this and that is there was no allegation of lost sales here or more harm in terms of lost sales by sautter the inventory is gone it was so long ago and so it's kind of an academic argument about whether the pin share violates something or not because they didn't suffer any harm as a result so that basically i would say you know after university letter after university loft had removed the point i think this case to me represents a situation were sort of sort of engaged in this read well this effort to find any kind of reach they could regardless of facts they were going to find a breach and they want to pursue this no matter what they were going to try to do and so they sent this letter this st notice after the one hundred and fifty dollars days it said a sale was pending which wasn't they had actually tried to make that sale and it was it was not pending it had been canceled the same day that they they made that it was through some entity called rock by the universal off it never heard of one amazon and yet it wound up in their st notice that that was that there was this pending sale which there wasn't and then it made a reference to these images that hadn't been made a reference to sam's club the picture on there was years old and said it was out of stock and was not available and then it made a reference to these images that were that they had found through seventeen hours of working on the internet and those were promptly removed that should have solved this case in the end of this case but they asked for discovery over objection court granted it and there was extensive discovery in gaijin there was a request for admissions document production in iraq at tory's depositions i mean the whole gamut was engaged and we had to go through that incur fees to respond to this even though we knew there was no basis for this lawsuit and so then then in the nd this came as a result of the discovery that that should have been had in the st place and so so and this i think relates to the fees we spent a lot money defending this case when there really was no basis for pursuing this in the st place and and no matter what no matter what the facts said the allegations continue to be deliberate and willful you know well and i think i think the governor on that behavior too is the attorneys he's provision right so so if you're going to pursue a claim like that and you lose you have to pay the fees for pursuing that charities why in the light of this provision specific contract provision are they not entitled their attorneys well because they didn't do it timely and they only did it every once was untimely about well they all throughout our fees what's on timely about their requests to the court after there's nothing on timely about their request and you answered i don't why should they have their feet because they are not in we did we did it we didn't ask for attorney fees we put our attorney fees in because of part of our prayer relief but we didn't file there was no post filing motions on on what if any fees and you did not prevail on not well we did have