toward good morning reading the district court's opinion that issue here would not know that well logics had queues the prior art of infringement of sixty claims after being told by the patent office that prior ar of sixty five yes and you did not in your attorney's fees application present to the district court and you certainly don't present here any thing about the specifics away why is that an abuse of discretion you did not show it showed that the district court anything about the specifics of the claims and why was objective leak baseless or anything like object facts in addition to the weakness of the patent clears it should have done all of that the patent claim issue is one of the issues that was what else what else to say first that the extraordinary result well logics in arguing against the state said exceptionally weak that they stand out from others right such as one can't tell i don't believe i have difficulty how you can still say that the district court abused its discretion in saying i don't see the exceptional weakness here result demonstrates the exceptional weakness of the claims without further analysis that just recorded was aware of what the back and forth was it received court but to your other point it's not just that argument we do think it's important but it's not just that it invalidity but felt for the prevailing party on it for it so the prevailing party below didn't weigh in on everything but yet still the court properly concluded that there was an exceptional case in that circumstance the other didn't look at the details of the claims and the claim construction and the arguments in some of those cases this court's precedent has done that they've looked at the details of the arguments and again we emphasize that with respect to the accusation of the prior art that doesn't require much detailed analysis other half of the class it would be in in that case then the case would be different an argument might be different but that's why the supreme court of the say as we consider the totality of the circumstances here were because talking about the are three software yes  are different versions of the art three software so that maybe by the time the infringement contention it was a modified version of the free software compared to the prior art version of our three software the other versions under different names it was called e c c and where things in the future if that prior a part with if it was prior word that rendered the pattern invalid and then that doesn't change anything else even if there were other product long list of software products over one hundred software products that were accused including our three for example just by that name and later it did infringement contentions that read against the old are three exactly the way our three read against the respect to those claims the guidance from this court is consistent the carter case cited in our paper says clear that cues in the prior art is in fact something that should be considered in the determination of an exceptional case and how we know that just record abused its discretion is because it didn't even mention that fact in its opinion below what the district court said in its opinion was s e p says that well logic should have known about the prior art that's a true statement but that wasn't actually our argument below and that's not the full extent of the fact that the district court should have considered the district court should have considered that it accused the prior art after being put on notice by the patent office claim in litigation where in order for you to have one on the same invalidity or compatibility argument in this record you would have had to meet a higher standard we don't think that the court needs to be treated with the different standards  played in at all here and that's because our argument is not simply that because they lost this case was exceptional that's part of the argument because the supreme court guides us that is evidence of the exceptional weakness the point is that having   put on notice of an issue raised about over over disagreement raised by the patent office well logics then accused not only are three but one hundred other products of infringement of one hundred twenty claims with demonstrating no thought no care no concern and doing nothing in response to the fact that the patent office had raised this issue so again our argument is not that because the patent office identified the question that it leader resolved reexamined was initiated were initiated by the p t o not by the request for sure there were several different reexamination did so in the months leading that came at different points over a few weeks or a few months in the few month leading up to the january fourth state of the case january fourth two thousand and eleven i believe in those months the parties were engaged in the things that parties are in a patent case specifically in this case we were preparing invalid the contentions require the courts local i believe that was in october of twenty ten your honor so from the last until the actual stay our motion was filed i believe in november and i believe it was decided that you were or the order issued in january so there was a couple of in the period so at least so you're back and that's the activity before as you say the p t o put them on notice that's correct your honor that's why that's right and to be very clear we do not argue that that fact alone is a sufficient basis to compel a finding but we do believe it compels this court to conclude that the district court clearly erred because it didn't even believe that fact it didn't even mention that fact as well as the entire totality of the evidence all the other things that we identified in our pleadings i know that i mean to my rebuttal not that kind of exceptional case where a small company is trying to you know greenmail a large company in litigation and the district court recently exercised its ample discretion to find this case was that exception this is below but of course one of the court wants to go i'm prepared to answer those questions as well i do want to start with one overarching point that the district court did the multipoint analysis that's required  ignore the fact that you know our three predated our patterns but let me answer that substantially as well and that's the point judge chen during the first argument which is that the we should have known that you know our three necessarily anticipated all our patents is an incorrect i don't think that's correct as a matter of the record well you you nineteen ninety nine instruction manual if if that's what that document was on which the reader sam would know she added no your honor we were accusing the current are three product at the time and deflation is there anything in th developments i mean i was thinking about it last night this is a software program where you're supposed to go to well and to procure and so so the idea that in one thousand nine hundred ninety structuring you would have anything to do with two thousand  instruction manual where you're starting to get hand help you know computers that can go to the well do the procurement of the new products that they would look anything like seems to me quite unlikely but it's not in the record that i can point to what the judge does point to the fact you know it was a lengthy re exam process so i'm suggesting other suggesting that it wasn't such a clear cut you know simple open and shut process but the judge doesn't either addressed the question of whether it's entirely improper for you to allege that our threesome fringing when our three was prior  are three he doesn't describe the whole argument in great detail although i don't think he's required to but he had that argument before and they made that argument in their papers and i think it's quite clear that he c it if i might address briefly some of the non patent issues that our friends on the other side say example if i the sort of misconduct or the exceptional nature of the case for one thing just as a threshold matter i don't think that any actions we took in the trade secrets part of this case can properly be considered as a matter of an exceptional case finding under section five for one thing most most of the time the trade secrets litigation was not part of the same case they were separate and so i think just as a matter of procedural rules you can't consider those in this matter but even to the extent you do i think it's perfectly safe for this court to assume as a further matter of argument that you can consider them nothing went wrong in that litigation that would require an exceptional case example we were right about that argument the district court in that case lacked subject matters diction no one disputes and that was solved by joining it to the to the patent case that's right and that's and that's the basis on which the fifth circuit then on appeals rejected the jurisdictional challenge because there there was not one case in which there was no need to realign diversity that's right he reestablished federal question jurisdiction and then you supplemented your action to it and then we had a dispute with the other who sought to sever the trade secret claim from the path because i think we did that with you and then after you successfully got that severed you came back and said oh loo k there's no jurisdiction over the trade secrets yes and that did happen i'm not going to say that so what are we supposed to make of that i think you i don't see this way but i mean first of all jurisdiction and that's when we discovered the issue why no one noticed it at the time the severance was granted i can't honestly give you an answer to that but i think people didn't think about the question the fact that you create a new case when you sever a case from another and there needs to be an independent jurisdictional basis and you know it's just a mistake that affects them one way or another in that argument ultimately it was rejected it was rejected but i thought it was a good faith argument we thought it was a good faith argument it was not no one no court to deal with it said it was frivolous or merit less they said we were wrong that happens all we argued in that second go around i mean argument was you know there's been way so i don't think that that could possibly be something that this report was acquired as a matter of his discretion so i think by the time we get to there were five brief it's clear that their main arguments are about the two twenty three and forty six patents and that concept that are three and just most of those claims but the other four patents were probably not about our three and if you look carefully at the board decisions should always have been the record as far as i know if you look carefully at the board decision which you'll see is arguments going both ways we prevailed with respect to some legal arguments before the board ultimately however all of those claims are and validated but they had nothing to do with our really or any other sort of obvious  l i judge to be sure but well within the normal bounds of litigation between two large two parties that have been fighting about important issues for many years if the court has no further questions  important to emphasize that well logics actually prevail they suit accenture and they prevailed but leaves out one critical thing that also was ignored by the district court that in the decision confirming that they prevail in various issues the district judge hearing that case tried those facts specifically distinguish escapee from accenture well logics throughout this case specifically felt that the german litigation is pending i gather the german litigation is pending it's moved along since we statutory fees but not the full amount of damages we saw but well logics is appealing the substantive different asian denying its claims against s a p and we're appealing all the fees in germany it's a different set of fees not what we're sitting here and that's not is that only page nine exactly your honor that's exactly where i was going that is that is a reference to this argument doesn't quite say and by the way right this is line four to four and five essays is part of what you say was accused maybe differently i believe that those words are correct your honor but i don't think that's the important this court should give that sentence in the phrasing of it for two reasons the first is that that reflects nothing about the actual underlying facts it's not just that well logic should have known that some persons of the software predated it it should have known it was prior it was familiar with the product secondly that sentence which is the only very broad high level reference to the issue at all but raise no understanding of this court's guidance again in carton or in many other cases that if you don't accuse the prior that's not really acceptable this isn't the valving law i thought it was interesting but i don't what should i make of the fact that it is and you are application for fees as is fairly common you have one section about litigation positions completely maryland and then a separate section about and reasonable litigation conduct at this point about are three does not appear in the first that is it's not one of your two two points about why their position was objective lee meritless it's only one