technically should be switching over but that's ok yeah yeah i like that place better the difference you know this equipment there's a disk disagreement as to whether or not the american rule applies in the circumstance and you all take the position that it doesn't but even if it did it doesn't make any difference in your view is there a different standard that supply in the if we conclude the american rule does apply in this circumstance is there a different standard that apply in terms of the requirement of specificity or clarity your honor the american rule requires a heightened statement of clarity where it applies as pointed out we argue that it doesn't apply to a unilateral compensatory the like congress imposed in section one forty five but as your honor pointed out we think that the language here is clear plaintiff has provided no explanation for why the language all expenses of the proceeding should mean only some of the expenses of the proceeding or part of the answer seems that expenses includes attorney fees right i mean if it's at all costs of the proceedings i presume f doesn't meaningfully dispute that the ordinary meaning of the term expenses includes personnel expenses that are expended we cited dictionary definitions in our brief that that shows that expenses norm normally used to  fees doesn't it cannot point to any sort of textual or dictionary definition that shows that expenses excludes personnel expenses in the supreme court has made precisely this point in making the distinction your honor that are you arguing that the reason you prevail here is because the personal expenses that or obligated or not attorney streams of your honor i think are our point is is that the term personnel expense or the term expenses and that horse the office hires an outside the lawyer already did that in the theoretical case that they had the authority to do so all expenses could include attorney's fees were saying that it would overcome the clear statement presumption of the american  could i'm sorry i couldn't tell what your position lights because you just changed it couldn't i wasn't sure what that meant oh i'm sorry if i were unclear your honor the phrase all expenses of the proceeding overcomes the clear statement rule of the american rule and so it would overcome that in the case in which the p t o could have hired an outside counsel which didn't hear and it's not clear whether peter would have such authority but the phrase our where the term expenses has been construed in the abstract or certainly not an example of that that's disconnected from the phrase attorney's fees but the here we have not only the a phrase expenses at all expenses and we have no examples of a case in which expenses have been interpreted to exclude personnel expenses like the p t o is claiming here i don't understand why though you place so much emphasis on  said they paid the expenses incurred would there be a difference between all the expenses and less than all of the expenses your honor i think that that term and its ordinary many expenses as you point out include the expenses of the proceeding but congress made triply clear by using the phrase all expenses at the proceeding and i ask the questions much more goes to your friend on the other side and i plan to ask him about this as well but in  cases as i understand it arlington in the west virginia case those dealt with expert feet and it seemed to me that the the same rules would apply to expert fees as they apply to as they fight with tourney speeds at least in terms of the american rule so it's a little odd to me is it inconsistent for the district court judge to have parsed out and differentiated between allowing the expert fees here and not attorney's fees with respect to the american rule ye the is it inconsistent to treat them differently if expenses includes expert witness the is that suggested also includes attorneys well the term expenses is capacious and includes both other than perhaps a whole bunch of historical statutes all of which use different terminology other than that what can you point to to say that expenses is not included it's not intended to include attorneys so so the first thing is that under the o s construction if expenses includes attorneys fees without regard to winners or losers here then the p t o would be entitled to their attorney's fees in cases that the patent patent t prevailed  particularly unusual deviation of the american so right out of the gate they have a problem there because that suggests that the american rule applies in a situation in which it's not a prevailing or a test explicit in specific requirement that the american rule mandates so the in your view is that they have to use the term attorneys face no they have to they have to use term expenses but it says expenses including attorney's fees or expenses and terms is in title thirty five so if they say if the statutes uses the term expenses including attorney's fees and another statute just says expenses cases we're addressing a different issue how far do you how what is what's covered by costs tacked on to get she noted that costs have a very specific definition under the federal rules of civil procedure so those cases really deal with it with a very different set of issues well what if we were looking at arlington and also at the west virginia case you know known want to mean west i forget what it's called but it also dealt with actually expert witness but my reading of those cases repeat at the in those cases the supreme court knows the term expenses to include attorneys fees they called out the example of what attorneys fees it is and they did it under tribe that way white milling uses the term that way what do you have on the other side of that well first of all the the court wasn't saying that expenses is so explicit and specific enough to overcome the american rule construes the word expenses to include attorney fees an expert witness phrase don't think that's a fair leading i saying i disagree with that specific characterization runner i think it's fair to say that in some contexts the supreme court has used expenses in a manner that encompasses attorneys fees but i don't think that these cases stand for the proposition that the supreme court has defined expenses to attorneys fees much less to have done so in a way that overcomes the american rule in baker botts the supreme court said reasonable compensation standing alone wouldn't overcome the presumption of the american rule and then on top of all of this including the unusual deviation of the american rule that the p t o is advocating here we have the p t o s hundred seventy plus year practice of not seeking its attorneys deposition but specifically did not request attorney's fees this practice i submit is also relevant to the question of whether this is specific and explicit enough if it were many of these cases but there's no there's no indication for they've ever suffer fees prior to just a few years ago thank you very much you address that question about one forty five options how frequent they are really how many there been the last twenty forty years and the last twenty or forty years i don't know if you give a nice view on the quantity of one three five action was my impression there was more than four or five of them more than four or five in the last twenty years i would think so that would stand to reason your honor i can't have that knowledge i don't have that number in front of me but it seems safe to assume that there have been more more