applet and had it properly categorized the kayak applet it would have not created summary judgment and kikes neighbor and third there are competing expert declarations in this case that render summary judgment inappropriate because they create a genuine issue  clarified that executable means capable of being executed that is capable of being put into effect and carried out fully completely is that the full construction that we that this court gave in the twenty at the time that it is generated and then transmit it over to the client and then so you have to look at what is generated by the server and test whether that has all the data functionality that's required in order for text certainly or are to to to put that in contacts am i wrong in my understanding of what the claimed instruction is i believe that that is not what the claim construction was worth and that is the kind of construction that was i don't see how we can limit our earlier in the into the acts of the case i'm not asking this court to limit its opinion to to the facts of the earlier case i'm just trying to put the statements that were made in that case in context i  understanding how the group let's work a my understanding is the group be applets they get sent over to the quiet and then but and then after they get sent over riot there is some kind of resource that next get sent over to the client and then by the time it's time for the applet to execute on the client it has the resource wasn't sent to the client until after they happily get sent to the client and what part of what i just said is not right so i think that we're having a slight terminology issue what's initially sent the resources or downloaded prior to the outlets execution but when this court asked whether the applet it will resources come from welcome from the server right the resources can come from the server right  server but then of the part of the web browser continues to parse the code in the h t m l document at which point it might reach an applet and so there's a difference between the h t m l document and the applet in the resources correct your honor because if we part is not that that it doesn't meet the claim construction and here's why earlier you did admit this is what i read that is absolutely correct but if we read the claim construction an executable applet before it is first transmitted to the current which means it must include both the particularized data and the functionality that's my understanding of this court's conception of the claims of the one one one patent you are expressing some other conception and where is well the language i have is directly from the opinion it's on i believe it's on page and site nine if t and maybe that should say nine sixt that tautological i mean it's capable of being executed once it's once it's all set to be executed that's the way it works but that doesn't mean that it's capable of being executed before it's transmitted which is a understand it the construction it was previously given before it's transmitted as i understand it there's a hole in the app which will is later filled in one of two ways depending on whether it's a group a or group b if but if it's  that that initiated it call across the network to get the product it so for example if you clicked on a different i think it was clothing if you put on a different i don't know clothing it would actually richard cross the network if the data  in come back and every time you clicked or selected a different piece of clothing it would do that in this case that doesn't happen all of the data in the functionality is transmitted for the applet and is a bailable to the applet prior to execution but it's not again i think that we are having i don't want to use the word kind of logical but when we're asking whether it meets the claim construction we simply have to apply the i mean it's a corps i believe the panel's understanding of a prior claim construction and in the prior a pellet that you know as well as the technology that's at issue here is correct i do want to read one thing from the prior server and its transmission to the client into the applet operation of the applet after it has been fully transferred to the client claim one and seventeen deal with the former and i believe what was going on in the prior appeal is the same issue here begin now the record is undisputed as i believe you recognize that there the applets all are in a way in which they're not complete when they are sent from the server the client must still go back to the server to get something that the applet needs to be executable and their expert admitted this is true for each of the apts i want to call out kayak in particular because because the appellant raised it but as you saw in that case  that situation they initially allege that the applet started at a particular line of code recognized that somewhere within that line of code they identified there was an explicit reference that they couldn't they can try to argue around explicit reference to go get more code so they move that line of code later in the case to something beyond that reference and that way they could say well it's not explicitly and there and therefore there's the appl line one thirty four and execute those particular lines of code after one line one thirty four web browser necessarily has already attempted to execute line one ten right yes and lights in is that explicit reference that's in appendix three three two three so in each of the cases for all the defense even kayak which is the exception they want to make it's true that the applets all are not complete and not finalized once they left the server what they're trying to do here is over broaden the interpretation of the claim to something that's so broad it actually captures the prior art they criticize prior art in the patent is is java applets that the first thing they would do when they transmitted from the server was go back over the network conduct additional transmissions to get all the information that they need it that's true here too another technology they accused is not a good fit because the expert admits that it's a quote vastly different it's something that there is no no equivalent packaging mechanism with h t m l and javascript in order to to applet will go not back to the server but within the confines of the client will find the necessary information which has been separately transmit that's as i understand it the group big group a i understand it is there is no such link within the four corners of the applet that goes back to find that data is that accurate with respect to either or both slightly within the cut deep box rely on additional code and the link is found elsewhere well when i say link i think that's a misnomer i guess what i meant it when when the the computer gets to that point in the applet that it distinction that he drew between b and that which you disagree with as i understand it but he said well group anyway you don't have to rely on the transmission that occurred earlier and i understand what you've got i applet which does not need that additional transmitted material is that correct so that's an accurate assessment of how just gave us all we disagree if it because a no situation group a or group b is that applicant going to be able to be executed by the client without executing all of the links before now but isn't that just because you've you eyes and that are of computer logic to start the beginning and you do whatever the instructions given to you until you get the app and one objectively on a reasonable as in this is there a separate finding that is objectively unreasonable and the reason is is that two reasons a teen fitness says it's the totality of the circumstances is it either it that they had a strategy to sue as many defendants is possible in this court acknowledges that their theory they chose was a broad one that allowed it to do that soon as many defenses possible with the strategy of structuring settlements that out of nineteen thousand one hundred ten it's is a shade above objective leon research just by chance and sort of you want to be able to tell that the senate that there's a risk that you won't be able to take the burden of stopping this abuse of litigation suing a lot of people and settling for less than the cost of litigation well it's up to the district court to decide how meritorious how much care if they hash as long as you're losing party so there will be a lack of some merit as long as you're losing party and your strategy is improper then that is great that can be grounds for the district court to decide this case is one where we need to deter that a conduct with a hat i may not have a full record to investigate the full merits of this case but i can tell you it's weak and i don't like the strategy and i'm going to start i don't have to go through a full mini trial to establish this is definitely objectively a reasonable on a full record in this case we it and i think you alluded to this earlier you saying that if you have twenty defendants and the case is let's say extremely weakest one thousand of them that you happened to be the defendant as to which the the case is actually quite presentable a perfectly presentable case that just happens to be lost let's say after a jury trial an appeal and everything in which everybody regards as close question that you can get not because it was unreasonable to pursue you in this case but because the plaintiffs improperly pursued the other nineteen right and that may because you don't know at the time of making the session for the fin the case whether you're going to be so successful that your case is the one that's go of circumstances when you consider how the plaintiff is out there suing people warrants this defendant to be reimbursed for their fees even though in this case i may not have a full record improper case that abuses the court system by suing a lot of the finance on a weak case with the express goal of settling as many as they can before the ultimately lose are you challenging the district court's finding th fringe many areas here were not objectively on reform so that was a successor judge that ultimately ruled an exceptional case and we are challenging that finding because it contradicts without any reasoning with arbiter contradict without any reasoning judge davis prior expressions and rulings on this case a huge davis said that the claim was quote without merit something we say all the time when we decide even in a close case that one side loses tuning in the course of the case including dealing with the the group a group b distinction and nothing about what he was doing indicated to me that he regarded this case as being frivolous while at the very outset he expressed extreme he was saying i'm concerned about the risk of this kind of suing as being a shakedown but he specifically said if i recall the transcript that this is not necessary it's not saying that that is true in this case am without adding the additional line in which he says i'm not saying that's true in this case to be clear i'm not i'm not i was representing he found it to be a shakedown it's what he did look at the argument that ok i podder as a writer what he was saying was i'm worried about this being a question what find the judge davis make that helps in the order after he held this hearing with the big with all the defendants he said the play to strategy in this case makes it unlike the typical pattern case that means it's the end of part from others because it sued over one hundred defendants with the goal of early resolution of the disputes through settlement in a range that essentially amounted to litigation costs that's at three six four seven so he by judge certainly you mentioned the without marriage thing and i think that doesn't get you anywhere as far as i could see well just listen you lose one good example is judge davis said that the expert that was shifting on kayak had no opinion that is directly contradictory shows that he actually did not consider the full record when coming to these conclusions but judge shrader said that on three four seven three four one  district court to decide in this case the district court then decide and the district court's decision is should be given deference and would leave use of discretion standard of review as explained in high mart versus all of your help management system before there is a second summary judgment judge davis had the case for about a year at that point judge crater had the case for over a year before he ultimately made his ruling on the motion for attorney's fees so forlorn asked how long does a court have to have a case before it's entitled to deference i'm not sure where you draw the line and really not without setting up some different standard or review i understand that cross balance are advocating for that defenses too many where do you draw the line what settlement amounts are reasonable where do you draw the line what is a reasonable cost of defense where do you draw the line that's why it's not a matter of law that's why it is is an