don't think it did your honor the attorney's fees that were granted in this matter dealt with the two eighty but the two eighty five and that will forty one based on the statute dealing with the frivolous obviousness defense and counter claim that was raised and litigated all the way up until ten days before trial that was the basis and the percentage of fees it was given on the basis of that obviousness countersign and the finding of that the court also found those those for the misconduct that was found throughout the trial and specifically the misconduct of just simply violating the court's orders the court set forth with the playing field was going to be clearly and whether that decision is right or wrong i would is not for this core issue is the judge set forth here is what the judge is you say set the rules and the judge reviewed then their record and said the jury's verdict is sufficiently supported by the evidence and he's not going to disturb it you know how do we deal with the very person you are appealing to seems to be in not in support of your argument you know it but we have to find it's is going to left hand turns and there are we believe there were three there were factual findings first of all as to the misconduct during the trial the left hand turn was not to colleagues abused their discretion this is their call we weren't there it's hard for us to say that they're wrong your honor i think that this is a situation where the court has found  unlike the medtronic scase there was a before this court a year or so before that actually found that here is misconduct there are specific findings of here here are the things that i said for what they were obligated to do and here are the things that they violated i believe that that not only is a good person but it has to be precedent that if you violate those orders if you make a finding that you intended and had a strategy to violate those orders that there has to be a new trial to do so will only create incentive for like position folks such as like you to expression when the dollars are so high to take the risk to violate those orders and then try to come up to this court and justify their position i think that the trial cour here simply is about of law under fraidy as well as the other circuits that we've cited in her brief have unanimously determined that if you find those that misconduct and that you violated those orders throughout the it is it is it is an abuse of discretion not in his findings but then not allowed in the new trial we're not allowing some sort of sanction to come out of the misconduct that occurred during the trial and in this case mr  crux case that's come out sense as well as a gift from god it's what came out during the trial was that it is a correct statement of law that that we're not to focus on or concentrate on the minor details or as well as if the minor details are not to be used and shall not be used as a basis of not infringing that is now been minor differences really applies when the design has thousands of features when it's a complex piece of furniture with three legged claws and animal features and they left off one tooth and on little ear or from the lion's head that applies in that context here there really is only one feature and a minor difference and that feature becomes far more significant doesn't it your honor i think that as i understand the crux there are if there is the art in their ear or it is crowded i believe this is a chord is effected then the the the ordinary observer is going to pay much more close attention to those details and a minor distinction may indeed make a difference jury to look at the entirety of the device and the government has said there are many similarities and this is why the jury having had the benefit of sume extensive debat seams was substantially the same that's what we went into just as judge told this to good and we went into that and nike was trying to completely different case that is why you know it that it became it animosity is  you know a kind word for what happened during that trial the in the frustration that generated monkey do it try the case project battalion and we were crying because their own folks namely mr to good to mr green when asked that difference us you know us folks that designed these things we may but before that people aren't going to see it and i would submit to you of all the folks in the world that probably know what your going to server is going to notice and not the issue that i had with the jury instruction that i don't think was complete because it didn't give the the the minor difference of language and secondly i think the big issue that i have with the way it was presented was there was all this extremist evidence which mislead the jury you can't go back and i think this is where judge patel you made the left hand turn and there was you can't go back and then try to determine well how much you are for the most part of for a little part the fraidy case and others as i understand it say that you there is a presumption at that point made that it has influenced the jury you don't go back in the real way that that at that point and for good reason if you were to do that again folks similarly situated or even on the point of side if you didn't like them or want to order you would just present that evidence as you saw fit and then come up to this court and say i was right in doing it because the because the martin said what it said  did find some differences he found that the nike plant was a half my nonna a slit and that it was filled with mash and of course the district court for thought that this evidence page five seventeen to five eighteen he did not say that the older person would know the differences in the bits he was talking about the taking of the seam underneath the hat on the inside of that he said that was one of one she did not even address the overall visual impression and that was the focus of nike's case and finally again you look at the brief one of the instances of alleged misconduct that is most disturbing is been and was that nike hat purchasers are very discriminating and look at a lot of things are very focused on specific things about their hats they're discriminating purchasers like in goodyear and like an almanac and that is directly relevant to the issue of infringement as this court state including here it does not pertain to clay construction when you're talking about the ordinary purchase do what you are trying to ascertain if people would be unwilling to consider that if they would be that there was no discussion there mr peterson's argument about the prevailing party issue i think that is fairly clear cut mr kellogg was not a prevailing party under the gentry gallery case and the books furniture they did not  precisely why the score should go and look at the actual record and get the course or which was so heavily relied upon by the plaintiff is not really the issue issues you have to look at the underlying record in the context of what happened to see really was the misconduct we to do something wrong if you look at the totality of the record here are some things that make it give you some context as to where the judges come from first as early as more the judge took issue with nike through another law for submitting  in the egyptian goddess appeal advocating for the elimination of the point of not it's a test yet in this case the point analogy was still the law up until the first day of trial so now i can move for summary judgment on point involving the judge said he was troubled by this inconsistency even in his or that no two he talks about how he's troubled by this inconsistency between advocating for change the law and actually applying the law as it existed that is not inconsistent if the judge was troubled by that route as a rule forty one if these are to be assessed the mood has to be given the opportunity to either accept those conditions or not and had not been given that opportunity as to whether to pay fees or to go forward we would have gone forward obviously this was an effort to streamline the presentation of our case period to keep in mind again so that's it so that the judge believe that we were we were dishonest by advocating for a summary judgment motion on pointed out that with prejudice the object that they did not want to be dismissed at all does it as a strategy decision you made at the time to get rid of that counter claim with prejudice and that character it was based upon prior art that was not before the examiner croton their credibility patent was our primary reference along with a rothchild reference which was excluded by the court again because it was too old and it woman's hand but separate apart from that there was the prior art was better than anything before the pakis we had a a fees it is absolutely not absolutely not a good if you look at the record you can you can basically capture the majority of the alleged misconduct by by the concept that we pursued validity even though we had a patent the fact that we pursued a change in the law even though we advocated for a point of a summary judgment motion the fact that we discussed features of our had to keep in mind when we discussed the features of our had even the judge said that we can discuss the overall visual  factually and legally and tenable in light of purports claim construction ninety pursued a strategy of giving superficial recognition to the court's claim construction well continuing to press its own interpretation of the claim reputational economic impact of an order like this is the courts are sponsibility go and actually look at the record not just put the judge viewed the record but look at the actual record and you are the context what was happening and in this case i the jury appropriately that there was no misconduct on that part and yet today you question is judgment when it hurts you is there any inconsistency in your positions no your hon what we want is for this court to look at the record that is as simple as i can make it because if you look at the record and look at the actual accused instances of misconduct you will see that none exists and that is consistent with a finding that that  night and that's something that this court has an obligation to review sometimes trial courts get it wrong sometimes their view of the law is inconsistent the law and when they make decisions based upon their or their view of the law that happens to be incorrect that colors any potential harm and notwithstanding the judge's view of our conduct that mr hall was not deprived of a fair trial and now i could not and unfairly influence the jury so notwithstanding the judge's view of our misconduct as bad as he said it was in his words he still found that a new trial it was not working but beyond any good we'll be happy to address any specific instance of misconduct that you have in mind because what we want to do today is to to resolve any doubts that you have to make sure your understanding of what happened at this truck or is is for complete because ultimately we're not here to try to argue right or wrong we want you to focus on the record because the record speaks much more persuasively on this than i ever for the jury we had to refute that so i'm sure to give actually talked about how he designed his cat and why he designed certain features the way he did because the jury heard from opening statements and from mr kellogg strick testimony that nike stole this had the closing argument i want you to take this had i want you to look at it turn it inside out mess with the scrap back there try it on like an ordinary observer what's the strap to do that was testimony with respect to touch understand why the district judge might feel like you're stepping on a line there well from my standpoint i don't know what it was an object to but but more than that that was simply going to the ordinary observer test again testimony from miss kelly which is focused on our ordinary purchaser and what they do when they buy a hat they go to a retail store they look at hats they try them on look to see how they look and fit and that's part of what they do and just like in arm and when you have that level of absolutely not it's a matter of fact and rejection dots with you they say that a verbal or written claim construction usually is unnecessary but there are three reasons why it is one of those this for the judge to say these features are functional not part of the patties or i believe that there certainly was at the time that they filed their will notice and motion would get to that in a second but there was additional imposed change in the parties relationship at that point there was a dismissal with prejudice of their counterpoint and i think under the highway transport case that clearly at that point there has been a change and therefore a basis for section two eighty five and certainly under rule forty one sanctions the gentry case and the sh case if my if i can read my writing correctly that came out later i think those cases stand for the proposition that if there is no changes in position between the parties until the absolute conclusion of the trial sure at that point there's only one winner and you're not going to bifurcate as to what kind of claims prevailed and which ones don't and that makes sense but in this case certainly there it's been a change as well and route forty one the one thing i'm not sure that our briefing it was clear enough on as i read it i want to make sure the court is clear with respect to context of what happened with respect to the nike counterclaim nike didn't file a motion to dismiss their counterpoint to try to determine what the condition was going to be if they dismissed and in the comments now that we would have gone forward the evidence is in this is it a thirty five thirty four through thirty or thirty thirty four through thirty forty five they probably notice to dismiss they wanted that case or that part of it gone as quickly as they could because their expert witness actually provided very favorable testimony to us on infringement and we weren't there we within twelve hours filed you will jurisdiction to decide this afterwards bottom line was we want their expert here so we can use him in our case in chief the court denied that but to now stand and say gee that was that what's what was wrong in this case throughout the entire speech what they were using him for and what they tried to do is create a virtual checklist of non infringed they were trying to keep take all sorts of items that they tried in markman tried through summary judgment tried in motion strap work when you're running you have a commerce of strip part of the claim construction it was well your open it was in the sense that it was proposed by nike along with all sorts of other details i mean every single detail you can read it was you it wasn't specifically said no but it was in the sense that they had asked for it was rejected they offered it again as a jury instruction and they offered it during the will fifty at the conclusion of the trial so certainly they were trying that was own the backdoor and said well here's our head that doesn't have all that stuff and then stood up during closing and say i want to go back and feel and touch it move it around and do all this sort of thing implicitly argue in exactly what the court had rejected and that's exactly why the judge got so upset and that's why we were going crazy as best we could and no excuses we didn't get enough i mean it's it's back to the evidence went to one in law school as to how many times can you do you have to object to the question of did you beat your wife again this morning i mean  that it is the eighth circuit says which i think controls its diminishing returns and in fact we went to the extraordinary measure of actually asking for a motion in limine order to stop this nonsense i mean you would think that the market would be enough but we could see during the discovery the summary judgment and everything this is what's come up with us with emotional money these folks said exact they said i understand your explicit order your honor i understand explicit order of martin and then proceeded to them can i talk about truckers cabin everything else the judge says absolutely nothing about it we've already gone there we're not going there again and and every witness comes up you would ask a question and they would come out with the rehearsed and sort of you know how this has different because truckers wear this type of hat not sports people such as nike that along with everything else we just bombarded into the jury box and that's why mr kellogg deserves a new trial with the proper instructions set forth  costs and those are certainly a small percentage of and mr kellogg sits here today still with not the opportunity to ever present a fair case in front of a trial pursuant to the was a design patterns and that is our position unless the court has other good thank  invalid there's no change in leadership which is also stated in the highway transport case relied upon by by mr kilo with especially if kellogg's sues nike for infringement on a different product using the same case law it is not be a change in the legal status of the parties it is not with respect to any good this happened with brooks furniture a party dismissed their claim actually played just mr claim with prejudice and the court there found  clear of that entirely for fear of more objections and admonitions from the court but ultimately what happened is the judge we became sideways with the judge we believe based upon the judge's assumption that we could was was dishonest and that you know each time we talked about our hat was related to plain construction and again there are many reasons i mean number one they open the door on numerous things that we had response when we tried to the door  nowhere is that more clear than julianne davis they called her as an adverse witness offered into evidence lead us where she wrote talking about our positions not infringement before trial you know when i asked her questions about the same letters objection claimed structure and that's wh record as you said is your responsibility in that trials look at the record evaluate the context and when you do that we feel that you'll find the misconduct