thank you your honor may have please the court this is a case that should never have been brought microsoft had no reasonable basis to accuse no it's mostly application of infringement what macrocell the cues as meeting the questionnaire and series of questions requirements in the claims was plainly no such thing it is merely a listing of product categories it is no more a questionnaire with a series of questions than a restaurant menu would be this is a frivolous assertion it was frivolous it should have been frivolous to mr saul the moment that it looked at this and then looked at what it was accusing now well the problem for you is that cream court has told us that we have a  it well i think perhaps the most important reason why little deaf little to no deference is owed in this case is because the district court gave very scant attention to the majority of the arguments that were made by newegg in connection with its motion the questionnaire and series of questions issues are not touched at all in a district court's analysis so right there is not a single finding to which in this record should be given any deference of the circumstances are required to be addressed and specifically calls out that the parties litigating positions are part of that analysis so when there are substantial arguments made by new  litigating positions taken by americans all throughout this case the district court not to expressly analyze and dispose of those arguments we think is error and requires at a minimum a remain and to address those issues in this case we don't know man would be required because the issues are very very clear under governing law as a matter of law these issues must be resolved a new experience would be an abuse of discretion not to the questionnaire series of questions issue being  most the most obvious one and this is a legal issue having to do with claims scope and for whatever reason the district court declined to to actually resolve it but what the district court did resolve was a dispute over whether the term questionnaire standing alone requires the presence of both questions and statements and in this case this record said well it doesn't have to have questions you know phrased with who what when where why or with a question mark at the end it can include certain kinds of statements not any statements but only certain kinds of statements that call for response the example that the district court gave have a a page it has a she bullet points with different options pain is so other she have to choose between those options would there be a question there short i think depending on how the options were presented it may be a question or within  district courts construction say there's no question marks all this is so like one and then there's five different options i think that at most might be a single question but the claims here requires they require a series of questions so that one faith question is that the court did positions of microsoft's opposed claim construction on disputed terms and rejected most of us attempts to narrow claims to for the construction it's finding finding along the way to the ultimate merits regardless of what the constructions were that this record adopted that does not make microsoft's infringement case have merit or not that's only one piece of it and in fact here even the term questionnaire which ma arguably one still requires that the statements that are allowed to be present as part of that questionnaire be of a certain character the kind that call for a response we don't believe a list of product categories could meet that definition than the under any  reasonable lens but here we don't even have to rely on that because the claims go much further and distinguish between mere questionnaires that might include things other than questions and actual question questionnaires so we happen to have a strong claim differentiation and in this case where the asserted claims require a series of questions in the questionnaire other unassertive claims do not the specification here is actually quite clear at distinguishing support that conclusion but nothing even the dialogue we're having this morning calls out to me to question the district court's evaluation of this case is not having stood up and based on the circumstances against all others well first of all again your honor i think the problem is that the district court did not delve into the facts as presented to it and as required by octane fitness for example i mean our case is about much more than just the position on questionnaire it's about the motivation and what we think is about faith motivation on microsoft's part it's about other issues where macrocell could not have reasonably expected to get proof of infringement and what the district court actually did to deal with those arguments was incredibly cursory for example despite considerable amount of evidence of macroscope settlement history macrocell inability to tie the settlements to exposure on the part of any of those defendants the district court dismissed all of that evidence in a single sentence that just says that microsoft asserted the sixteen patent against a wide variety of defendants and settled many of those for significantly less than litigation costs does not alone show that faith and that's at page eleven how do we determine what in dishes we look for that would indicate to us that the totality of the circumstances was considered by the district or other than just maybe using the words are you saying that all of the theories that are at best need to be addressed yes i think that's exactly what it means i think that if a party raises three different challenges to a parties to a plaintiff's infringement case i think that those three challenges need to be addressed again octane fitness goes beyond requiring a consideration of the totality but specifically calls out an analysis of the parties litigating positions so merely looking at one out of three or a portion of wanting a portion of t is not enough and then addressed the you don't like what she said he said but they address the evidence you put on settlements and large number of sins they addressed that they thought that was some give in terms of the the circumstances and the litigating positions that it's not enough to find one fact that cuts in a party's favor and decide that that disposes of the entire argument without accounting for the evidence and  on the the losing side of that argument as the district court found it so in the settlement context for example we have the district court not addressing the fact that macrocell was unable to tie the you know the five figure nuisance value some has to any exposure by any defendant and here we have if you look at a fifteen ninety three to ninety four in the record we have several dozen settlements companies big and small all round numbers all within that we think is nuisance value and as this court held in kill a pass if there was a good faith basis for why the those numbers were the way they were and if macrocell was correct it's just because this technology is used only in small one off infringements then that evidence is squarely would have been squarely in mech results possession and we should expect microsoft to come forward with that macrocell did no such thing and as a defendant trying to prove bad faith this course recognized in killer pass that we are at a disadvantage to get those smoking gun admission so what we have is a considerable amount of circumstantial evidence showing the macrocell story about what the settlements were paid why the settlements were pa knew what the settlements were paid how the amounts were calculated there's nothing macrocell can offer to substantiate that but if i could just go back to the circle back on the damages issue i'm sorry for on the settlements issue for a moment so their position is that these are a bunch of small one off settlements which would imply that macro solve does not believe the patents are valuable and yet they turn around and tell eg the new way goes three hundred fifty thousand up to thirty two million and they tell geico at the same time that it owes thirteen point two million this is tremendously inconsistent with their story that these are just small one off inventions this is just how their invention is valued and what it's worth in the marketplace now that alone might not show bad faith but at the same time that they're telling new act that they might owe these huge damages amounts they're also telling  eight thirty six ninety nine in the record that hey this case is about to get expensive and you're aware of the average settlement and we would hope for a counteroffer at least that not at least near that number now that we think is the best evidence of a smoking gun that we could hope to find in a case like this notably macra solve is not talking about the merits of the case against new egg and not talking about the merits of the cases against all those other defendants they're simply saying hey we were sort of this pattern a lot this is the average you should pay it and again this is against the backdrop of demanding many orders of magnitude more from newegg and its expert reports did did microsoft initiate suit against other defendants during the course of this  this matter yes your honor i did and it initiated eleven new lawsuits after the reexamination petition was granted and so it had been instituted and and we think that's an important fact because it was it had there been a decision it on that we had germination was a surprise was the nature of the arguments that were raised in what was alleged to have been that alleged had been a basis position below an unreasonable position below and the reason was those issues were surprises was they  were both issues on which new ink teed up the issue for martin tried to tried to distinguish our infringement theory as a as a clean destruction issue and they were both issues on which newegg either lost the issue or abandon the issue and this is the series of questions example that my friend focused on i think is what office on that one it as was well there was a second one and the same kind of kind of reason applies but my friend says that the dis or abuse its discretion judgement to abusers question and judge not or then in turn abused his discretion in not accepting those arguments because they barely barely touched them but the truth of the matter is that newegg barely touched those arguments well if you look at new inks opening brief speaking fees they were put primarily focused on the other issue is a crew sentences on a series of questions issue in the opening brief and when it came time t objections to judge the district court judge john schneider knew a drop of this was not a big issue and so when the district court would not give a lengthy discussion of that issue but instead focused on the other example that was surely in line with the way the issues were are well and that's the reason for that but in any event on the substance of those issues on that issue we do not lose the the district court actually wound in our one of the reasons is that you didn't have the resources to continue the lawsuit right no sir issa is not the reason so macroscope had a separate source of litigation funding because it wasn't causing that were solved to continue these lawsuits but what did it cost macro solve was the patent office actions and the reason why this settlement this lawsuit was dropped students do able to drop it was every mother's lawsuit that was pending at the time was because of what happened in the patent office what happened the office the writings on the wall this patent going to be invalidated that was macrocell is belief at that point and for that reason macros all said we're going to do the right thing we're not going to continue this lawsuit and the the day it was a day after or second day you can infringe  process when we got to a final adverse action we said look this is this is looking like it's an uphill battle and not only that but then and additionally exam was filed in i p r and this was right contemporaneous with snow statements from from former chief judge  but at that point that was the first adverse action that happened in the entire history of this campaign and that's the point at which we abandon that and said we're not going continue this we could of spent money continue to appeal that that patent office and try to get to a clean construction disputes and it wasn't those that knew it had shipping it inconsistent claim struck impositions and were kind of bad actors for that reason we're not going to dress these things the point that was made in the middle decision was those shipments in clunkers recruit stations actually show accept everything that you make tells you all is even the issue open and so then the question becomes was it was it outlandish was it crazy for macrocell to take a position that when it when a questionnaire can include statements calling for responses was it was outlandish not an outlandish position and there's certainly nothing if it was such a crazy outlandish position it's one that should have been been raised earlier what about the argument that that your assertions of infringements were improbable that it would it would have been even in the most remote situation that infringement could have occurred and with that also addressed the arguments with respect to the the in just methods termination is not part of the process but you argue well termination could occur if there's a weak single of walk into a basement something happens and then you reconnect we actually demonstrated this in our expert report by sort of creating an artificial network outage by using airplane mode and we'd be in the middle cutting in some some information quit the artificial network outage using airplane mode and see attempt to have the court actually construe that to acquire to be a user causing the terminations so these terminations happen now we get all kinds of arguments that were had nothing to do it was was like in the reply brief we get arguments that the odds of this ever happening were actively zero and those kind of arguments are branding they don't have any have an interest support but in any event we have they're just arguments and we had evidence on our side  expert said these things never happen in the millions and millions circumstantial evidence obviously we don't know we don't know that with respect to john doe the network went down at twelve thirty on tuesday and one of these things happened but what we had was the kind of circumstantial evidence about the nature of these networks or unreliability the fact that these kind of connections and wife connections and seller connections are always going out on a routine basis and we had millions and millions in the hundreds of millions of is not saying that it's impossible to prove it so even if our indirect evidence wasn't enough that doesn't mean our case was exceptional and we know it does not come forward with any evidence saying to show that this doesn't happen so the idea that this was some case as far as what a series of questions means i think everybody understood i think that this record understood that by limiting or by not limiting questionnaire to questions that clearly a expressed statement of the claims that questions were required did require question the spec is consistent with that a column eight twelve through fourteen you have a series of questions or statements being referred to a column eight line fifty two it refers to a quote form that asks the user different questions parin are you a man or a woman question mark is just nothing in the spec here that would say that series of questions means anything other than questions as we ordinarily understand the term as far as that new leg abandon the user has to take action to disable the first connection  again that's sort of a moot point because the way macrocell the q s new eggs app was beat was requiring actions by a user and that's the only way it ever could have accused new right because new a does not control customers phones into airplane mode are not new it does not control wife i networks and cellular networks so it was inevitable whether we got an express construction or not the macrocell could never have proven the new way controlled that step or the new way actively was able to encourage that step  my friend here says that newegg never actually brief the questionnaire issue at a thirty one fourteen through fifteen and a thirty one twenty we have newegg arguing those issues to the district court in a very short you know fifteen page opening brief and if i paid reply brief we got about three pages of argument to that issue of the district court should not have been able to ignore that also at eight thirty six eighty nine three ninety in the reply brief that is as far as the re exam we really think the re exam is largely a side show and is somewhat irrelevant because the premise of our exceptionality motion was that microsoft brought a frivolous infringement case and did so in bad faith the fact that the soft patent was also invalid which it my final point here the idea that it was inevitable that this infringement would occur that was never an acceptable theory under this court's precedent when this case was brought and look at the to cater case knowledge that infringement might possibly occur has never been enough for active inducement of infringement and if it is so clear that infringement necessarily must have occurred then this corine pass recognised more than macrocell should have had no trouble finding at least one instance where it did