chapman and today i'd like to cover the two main issues in this case the first isn't really the only main issue your claim the claim construction question that's that is really what i get what what we get down to if we disagree with you on claim it on infringement that's correct your honor i did we i still do not believe even if we lose on claim construction and all summary judgment that this was an exceptional case but you're right if the client construction the district court's implicit claim suction ok so when the bottle reversed if yours would draw ours water those people are not yes dropping a bucket into the well and holding it up i suppose that they are dropping a bucket into the moving towards themselves but it's by force and so in that case the force would be them pulling it up with their arms i mean the word draw is a verb that means to move by force in our case the force of the suction that's created in the venturi so it could be lots of things and other times it could be lots it could be many different forces than in any case the force is moving whatever the object that it's acting on towards towards the drawer so to speak but in this in the district court's going from there talking about would do it would not be continuous that's correct the district court in that summary judgment order seems to raise this implicit construction or interpretation that that term has that that term means a continuous stream or a continuous flow of fluid an unbroken flow of fluid under under the influence of chloral of chlorine correct and that's simply not supported by the intrinsic evidence or required by the patent itself and so our proposed construction continuously move by suction is supported fully by the intrinsic record as you read the claims value but you just agreed with me that that the plain ordinary meaning of continuously draw is not necessarily continuously moved by section by force by force and in this case the force is the suction that's created in the venturi could be something else yes it could be something created in the system you're going to be able you're going to be drawing chlorine out now when the canisters empty obviously you're not drawing him in any more chlorine but at that point to simply you've got to refill but so long as there is chlorine that that suction has access to and that it can reach you are continuously drawing chlorine whether it's a full stream of chlorine or whether it's chlorine mixed with air as you get closer to the bottom of the  this could occur and that was in response to well let's say that for a minute it draws chlorine and then for the next minute and an entire next minute it just draws there and then it starts start strong chlorine again and he said well i don't even know how physically that could occur other than maybe i think as we said in the the understanding that there is an initial draw of what you would call a considerable amount of chlorine because that's what's pulling up the top and then when you you know part of the canister and then you start getting the mixture of in and here that's right what i call it in it an initial dose i think is what we refer to it as and that's just the way that these these at the to its use devices are constructed and they have an initial dosage canister and then they have a supply tank that replenish that dosage canister and so as it does it initially in the first twenty seconds or so does a canister canister is exhausted and then and then it's replenished from the supply canister as long as the pump is running and it's sucking through judgment hinges on the correct instruction but i'd like to turn to the exceptional fieldwork finding and i'd just like to point out that when you read when you read the record when you read the briefs and look at the records in front of this court what we have here which is what i just discussed we have a good faith claim construction that's fully rooted in the intrinsic record number one we have well supported summary judgment evidence that we submitted that directly supports and friends my diff that claims construed the way we say it should be and that's  or if you disagreed with us to reject it which you did but when you look at the course of conduct throughout this litigation you have absolutely no evidence of misconduct when you look at only other  that just briefly the other claims that we brought were late we they were playing on information and belief a good faith basis those were number one dropped after discovery was closed and number two i think it's important to note that apple lease expressly stated in their brief we're not seeking any fees on these on these cause of action on these other three cause of action i mean that's a tacit admission i would think that they didn't waste much time spend much time or effort fooling with these claims and once we realized that there wasn't evidence to support them we drop trying to decide what this kind of standards are in this particular district will in texas we apply a nationwide standard well i think it should be a nationwide stand and i think this is a good opportunity to to to to you know  uniformity and among all packed cases and how that determined i don't think that an exceptional case should be that if a certain court doesn't handle as many advocates as on a day to day basis what happens if a different court say for example has some specific rules for  them that are unique to this particular district and the district court judge is upset is the fact that the person that they've tracked with an exceptional case violated all those rules that would be unique to that particular case litigant goes in there and violates those specific rules then yes if that were the case and then sure they may find that an exceptional case in that district versus a different district and this case there aren't we didn't you know there are certain local rules that were violated you know but the judge  absolutely do and my response to that is just that as many cases as we could we surveyed you know postmarks and status and when you when you look at cases where fees were awarded in exceptional conduct you see you know inequitable conduct findings you see true  professionalism harassment actual misleading statements made to the court history of bringing nuisance value lawsuits none of that none of that occurred in this case as we as we lay out in the in the briefing and in the record the discovery it was equal on both sides and were no motions to compel there was no finding of the court about not producing things you know one thing to point out is that the the that this report didn't seem to focus on well we refused to produce the testing results after we sent a very detailed demand letter to the other side the it will give us more in this more of your testing results and precision response was well know well all of that was produced in the normal course of discovery once litigation was commenced so nobody withheld anything nothing was hidden there was no there were no paul thank you but i think the key issue that we need to think about at least two terms to client comes to climb construction issues that they had an opportunity to propose claim construction during multiple phases of litigation when the  when the court asked for the disputed claim terms all out for summary judgment oh if they had prosecution arguments that would have affected the meaning of the claim heard to the issue here that was the time to present them to whether there's ever a time when there's no chlorine present at all no i don't think that's the dispute i think i understand it but i asked a whether that's true there is a i can show it to you there is one side says well there's a time interjected this side you know that the judge has given some sort of an implicit construction that requires an uninterrupted stream and i disagree with that now we can think further and go it is only logical that if there is an uninterrupted stream or continuous stream of fore  flow into the venturi chamber or from the supply canister then yes we might assume that there is a system or most systems there's going to be continuous flow continuous stream uninterrupted stream of point within supply to between those two point consistent with their proposed construction but inconsistent with the judges construction or how she ended up in the comparison plans i don't think that's the case at all i don't think there's anything inconsistent about what the judge did with the prosecution history because if you go back and look at the prosecution history what that the argument that they were making to the patent office was simply reciting that the zero seven one patent does not include the claim language and they recited the claim language for men and they did not assign any sort of a special meaning in the inconsistent with what the judge's order is in this case the the legal position to be by itself objective and recent and then she also stated separately we find the manner in which the litigate the case to be objective and reasonable so i think she looked at both issues and in concluded the same thing for were if he disagreed with her on the condom i think that the objective and reasonableness of the position is enough to support peace by itself i do not think that if you disagree on the claim construction issue that the conduct in and of itself is necessarily enough to support a five piece because of course the case would be stronger than we've perceived it up until this point t the issue is how do we determine does the judge have the right to make an effort inference and terms of the motivation of the other party based on circumstantial evidence in this court has said that they can't in this case i think when you consider and it's not just the strength of the letter of the words of the letter that i have issue with that we have issue with it's that not we're not limiting the scope of our sharply worded demand letter just the facts of this case right decide just about court you're going into that recognizing that if you're taking that position or if your motivation looked out and out like combined with an object a billion reasonable at infringement clime you are risking  but it seems to me that if you're requiring the district judge to give you the baseline you're fact at least cutting away at her discretion to begin with so we're moving from an abuse of discretion standard to something a little bit more something first part i think there was a question about objective a reasonable is and i think one thing that's important to note is that if this court agrees with us on the proper claim construction and turns the summary judgment around you know this court does not even have to reach the seat the fee question when it doesn't resolve the parties dispute and that's clearly what we have here even arguing about what the scope of the terms of tenuously draw is and this term needs to be construed in other cases that are cited an applebee's brief one and one relates to a new cited in our brief talks about rolling claim constructions where as a district court understands the technology better you can go back and revisit what a claim term means i see i'm out of time at this point so there  questions you need to last word i did the only the only thing i would say your honor is that octane fairness clearly says that fee is not a penalty for not winning and anyway a case that the paper says we can actually even be ultimately wrong but