think your honor ma'am please the court i'm addressing first our appeal of the denial of fees in the exceptional case motions cook patent claim we had two claims in this case one the subject of the cross appeal our appeal of the it is an abuse of discretion in that situation for the district court to deny an exceptional case motion we think this result follows directly from octane fitness which instructs the court of the district court to look at th discovery the light functional on both your honor they never the facts came out during discovery that they never had a legitimate claim of the liturgy what we point out in the addressing the the reasonable manner of litigation is that they knew that from the very beginning there chargeable with the knowledge of mr cook who was the inventor of his notebooks of his colleague mr foot and they actually wrote a letter to their patent lawyer the day after the very first experiments were done saying we got this idea and suggestion from our supplier it was recommended to us fire suppliers so that they they knew from the beginning but our a case is exceptional under under section twenty five either if the subset of straights is extraordinarily exceptionally weak or the case was litigated going on reasonable man and  second you asserted inoperable conduct and the court found that there was no basis for that assertion or at least not sufficient basis for that assertion so there was a alternative basis for your invalidity claim that that even you saying you weren't fully aware of until the course of discovery or the why isn't that good enough to say ok i'll give you that a lot of that that aspect of their claim was very weak but because the other aspects of their claim or not and i'm discuss the requirements of the claim the patent claim that we're talking about how do we can assume that she didn't understand over and over again in his notebook it's all documented is no but it's not just as testimony as the very first time i did he just tragic the very first time was october fifth one thousand nine hundred four and when i did that that's my wasn't one idea it was d s m his idea i followed the cookbook given by d s m exactly and i did that because they recommended that was the evidence in the case he admitted he wasn't the inventor over and over again and it's documented that he wasn't the inventor work that mr cook at done and mr cook testified flat out that's not my conception that was not heat stretching it didn't match the elements of the claim it was really a misleading argument to even bring the judge abused testified prior to the meetings with allied signal and the s m you're fishing was concerned about sleeping too it's close to his vest it's work on the truck and that was his testimony now is there contradictory testimony certainly of mr benoit out there isn't it also pointed out that mr cook's testimony was very confused about what conception meant was very confused about what the legal standard was for conception he consistently testified i tried some of the stuff that foot said the same as you just said but what they have is commercially uncrackable i had to keep working we didn't get an adventure and that's why it took another year that's why randy's hundreds of experiments it was weight to the fact that it doesn't rise in that sense i don't believe so your honor i think the district court analysis was you have the burden of proof on those not only did you have the burden but it is by clear and convincing evidence so that i go one way this evidence a there was an argument based on the plain words of the claims which do not include the word average that the presence of a small number or a single or perhaps of these molecules could affect the change of properties that the accused products advertising says they were the same as a function the same as the products covered by the patent and other words it's a reasonable course of litigation and what pure fishing did was when the market hearing went against it and reconsideration went against it followed fairly dismiss the case for consent of its phone so us all a lot of money for two reasons that morgan result made a very difficult for poor fishing to proceed with that undefined term average voluntary commitment the court said that as to the kelly claim that it made a factual finding that that term fishing should have recognized the extreme weakness of the callee claim prior to the state that norman filed advancer that's that's a lot earlier than fishing found the chemicals you're fishing found the two products that within the claims and proceeded with a reasonable i think this is where this record and remember this report in its first analysis said your view of the planet that one or a few of these right now she said after looking back at it she said that that it she believes that the record suggests not only the sheer fishings claim construction for which no reasonable support was ever offer was objecting only basis but also that her p no real reason for what the difference was nothing in that pattern would suggest that one hundred percent of the molecules will fall ever fall in this definition the vast majority of material you are replying to is always going to be shorter train molecules it's the presence of a certain number and that was the argument between the parties at the end of the matter how you calculate the average because even if you hadn't if you were operating under an average you lo so i want to just reply briefly on the cook pand issue and try to put a real fine point on it if i could and i really do urge you to look at the record of the briefs the argument the only argument ever made that they had a good faith argument was this ma hundred three work did not involve stretching he explained that it was holding the line at a constant tension and it is a false statement by mr mandela's to say that that work involves stretching there is no fact on which the judge could reasonably a base of decision that this claim wasn't frivolous and for that reason we asked the court to reverse on the cook patent claim on the kelly patent claim the fundamental problem we have with the entire argument is it's a misstatement of the district court's orders and what happened the first time around the court engaged in thirty eight pages of discussion of the kelley claim and found that the kelley claim construction of the one molecule advanced by peer fishing was objective we base so that finding had already been made and she didn't have to revisit that the reason she didn't grant feasible time is because under brooke's furniture second was second way and she found that before november third they had a basis for believing that they could have made an argument when it came back to her the only issue in front of the court was should i give you additional fees under the new octane fitness standard and to our mind that was an easy call because if you've already found objective basis that was the case it hasn't been appealed and so the court found with the amount of our fees is within her discretion the amount of our fees was never debated and so the argument so you're hearing today first of all they weren't presented to the district court on the motion on remand so therefore they're waived and second of all it's lost the case that it subjectively baseless the claim was subjectively baseless and then the third point if you do get to the merits we told them at the start of the case we use one palmer it's p v a one seventeen it's way outside of the range and we don't infringe and yet they press forward during the play of the structure proceedings we had an expert explain that any one of ordinary skill and understand when you use molecular weight and grip arms ition numbers that's an average it has to be otherwise it has no means to lose the war patent doesn't make any sense unless it's an average ninety three document does not involve the stretching is false it doesn't involve the process of heat stretching through a machine the way defined in the past but it involves a braided fishing line