if indeed the patent specification itself incorporated in embodiment that was consistent with the rejected claim construction the bottom of  claimed invention and now force the court his has found otherwise but doesn't that at least make this a worthy matter for a court inquiry i think with admonition that it's the specification stupid that's the way you tell what the claims mean you read it in writing and indeed the specification becomes the central focus of all claim construction i think it's we can't dismiss that at least they had an argument here that remove this from the baseless category  i think or to all too quick response to that the first is that this course was really crystal clear that you cannot infringe specification information is determined and only determined by mapping the hughes products to this or why the specification exists to teach and to interpret the language of the pla but it all comes back to the language of white and when you look at the language of it is very clear that base it's very clear that you have to have movement relative to a base but one of their embodiments had and anchored base just like you it strikes me that that is at least removes this case from the baseless category as the district court found the magistrate judge found seems like you're swimming upstream here  meet the third term convincing evidence can you show us in the case where he granted motion to remove is the basis for a finding of exceptional  case i'm not aware of any case where that's because it seemed like something of that procedural nature would be at the grounds for an exceptional case fine certainly not by as as everything we've we've discussed so far is the really one of the reasons we know that this case was brought in bad faith is the fact that  are we going to hear from mr pearson in a minute but you are subject to a frivolous appeal and they deserve a the fee reversal in light of the fact you can't show us in the federal circuit case supporting your position why is odd in this case there is a fairly erroneous standard of review and we think it's satisfied and we we believe that it is satisfied based on submissions by the parties regarding whether or not this was an exception these judges were familiar with the case based on a prior motion to dismiss brought behind the trial which was denied and based on the course involvement in the martin hearing which involve successful the mark in stage and seeking to bootstrap that success into a right to claim attorneys that is not the law as the scores of the numerous occasions but i would like to do today time why it is discussed with the court three substantial evidence was presented to the district court regarding our interpretation proposed interpretation claims but before i do that i want to speak to one issue which are on the record that is did he objected to the standard stead we have to meet the two prong standard books for sure they laid out what the standard was and then then went on to try to demonstrate how they had met the subject subject to bad faith and objectively baseless stand the district court judge after reviewing the record in its entirety and having heard many of these arguments previously conjunction with the martin hearing said no this is not an exceptional case i don't find bad faith part of the plaintiff and seeking to vindicate  nevertheless the district court as consider the alleged misconduct the federal court judge specifically consider the incident about which counsel spoke and incident for which i take full responsibility as calls for and the judge concluded that that was not a basis on which to find an award of attorney's fees that is and it came at the end of litigation and nothing to do with commencement of the sort of the prosecution and with respect to the first milestone event in history of i'm going to disrupt that a bit but the area that caused me some concern was the failure to disclose the purchase agreement it's a pageant can you tell us about that kiddie at the properly transfer agreement intellectual property transfer agreement did in fact transfer all right title and interest in the patent to educate but didn't you retain the right to be any recovery that would come in agreement is my mistake my or it's regrettable i'm fully responsible for that error the district court was not pleased mr couper chastised me for failing to provide the information it was not different facts in it makes me so prized district court there was some additional briefing the district court judge who was conversing with all of these issues considered this situation and he concluded that it was not very briefly then if i may same infringement theory that mr bennett with identified precision is whether the theory didn't change the theory didn't change at all it was predicated on it disclosed and bought into the invention which they would like to now the outcome of this hearing is particularly significant for the courts consider they made the same arguments then that they're making now bad fish with a geisha you don't have a basis for this suit the district court first magistrate considered that was the decision of the district court as of july second two thousand and eight in essence all these issues were put before the court and of course said the litigate because you conducted an investigation and based on that the alternative we disagreed with the outcome of that the market claim construction process and frankly i think that the court may have a year in destroying the claims  and alternative embodiment of the device in that alternative one specimen holder was mobile and the other specimen holder was fixed to what was referred to the frame of the device but that plain measure displacement of a first specimen holder relative to the base and that is the issue what does that mean relative to the base isotropic suggested to the court if i did to t and they argue that there is no possible way in which you could have an invention in which one specimen holder is mobile and will specify all respects to the base but as we all this court has instructed us to look to the specification and here we have a it is simply a frame of reference for measure it's not focused on anything specific