hear argument first this morning in case twelve eleven eighty four octane fitness russa's icon health and fitness incorporated mister mr chief justice may please the court an exceptional case under section two eighty five requires a court to assess the full range of traditional equitable considerations including the degree of reasonableness of the merits by the plaintiff action procedural aspects of the case an evidence of economic coercion frivolous and bad faith cases or not prerequisites to an award of fees under section two eighty five the federal circuit's test conflicts with the statutory language it violates estab statutory construction and it deprives district courts of the discretion they need to effectively combat abuse of patent litigation practices below the federal circuit found that icon's claims require a sea channel structure and that icon's claim construction to the contrary was without merit or appendix a day ten the federal circuit also affirmed the district court's grant of summary judgment that no reasonable juror could find as a matter of law that octane structure had an equivalent to the c channel appendix a thirteen this means that icons infringement allegations against meritless this fact in combination with other undisputed evidence of record namely the worthless nature of the patent evidence of economic coercion and the fact that two other elements of the claimed the core elements of the claim were missing as well make this case exceptional and it's such that this court should reverse the district court in award fees on its own you talk about economic order suppose it were reverse suppose that octane had the patent and sued icon would the analysis be precisely the thing the analysis would be primarily the same the evidence of economic worries you may be less so for example if you're a smaller competitor and you're suing a larger competitor there would be less opportunity for abuse knowing if i can was the competitor with the weak patent they would know that their larger competitor would stand up to him so the opportunity for economic abuse would be less i've been listening to your adjective this is christiansburg this court did define merit lists to the tune of it's unjustified and without foundation because if we remember the dish record the district court already said it's not objective leave baseless is not run in bad faith we understand the tension between a discretionary standard and asking for remain with the finding however there are cases that are rare not that rare but there are enough where appellate courts look at a record and have a firm and definite conviction that an award should be made such that it would the federal circuit's finding is such that the the infringement claim is meritless as a matter of law the claim construction position had no possibility of success under thirty five u s c section one twelve paragraph what do you or do you want to add to added for example in most patent cases there is the market in phase so a district court judge as a matter of law is required to find on the the claim construction so there could be a reasonable dispute about the meaning of a term that's resolved against the plaintiff so it just because they lose a claim construction doesn't mean their position has merit i understand well all right what what must be edited to the word marriage was in our strong view no reasonable do judge could have found it to be with merit if someone brings a claim construction position that's unreasonable or weak in our view that qualifies under section two and five and is consistent with the words that other n t said that it's not a standard i would is the standard however that this court used in martin and in peers and if we're looking at if if we want to make so so for example in most of these cases what we're talking about is going to typically involve the merits and so if we say that the only way you can get a feel for just as your own merit frivolous case it's impossible to show it's inconsistent with the statutory language so we're looking at this from a statutory construct context on the merits of what should qualif and there comes a point at which a case goes from strong to medium and across as into the territory of weak it gets weaker and weaker and then it becomes frivolous this court even in peers recognized that the reasonable man standard was something more than frivolous and we think if section two eighty five is to have any teeth in deterring the abusive practices currently in the system something more than frivolousness is required and it is consistent with this court's prior precedent we're dealing him you know we're dealing with a term that could be read in many different wins exceptional right maybe that means one on a hundred maybe it means ten out of one hundred and why shouldn't we give some deference to the decision of the court that was set up to develop patent law in a uniform way they have a much better idea than we do about the consequences of these field boards in particular cases and since we're just as justice kennedy pointed out dealing with adjectives you know meritless frivolous exceptional when it why don't we give some deference to their judgment well i think we need to look at the basis of the judgment which is grounded in the fact that they found a constitutionally that the p r re stander was required and i think this court's precedent be in cages two years earlier says that the validity of fee shifting statutes is not governed by the p r t standard if the court were to still hold that would throw into question all of the fee statutes of this country because a accordingly they presumptively would have to have  to my way of thinking when you say meritless are baseless it means there's absolutely no foundation at zero merit when we talk about objectively unreasonable and again as this court found it appears it suggests something lesser than frivolousness and the reality of i think of district court litigation is it's near impossible to show that something is frivolous that somebody had no argument i don't understand that your answer to the question how does the first part of the federal circuit's test what's so we think frivolousness is too low of a standard under two eighty five when you say without substantial merit i mean you're playing around with words again without substantial merit unreasonably weak or low likelihood of success i think those are all ways of getting to the same point which is something less than zero merit will satisfy under twenty five you have several objections i take it to what the federal circuit has said one is that you think objective  too low correct yes you also don't think bad faith is necessary agreed and do you also believe that litigation misconduct taken in conjunction with  case that is let's say of little merit but perhaps not as low as the standard that you have that you're suggesting would justify an award of fees yes we believe litigation this conduct especially in consideration with a weak case on the merits makes for strong doubts that i met sam a district judge someplace and i rarely get a patent case but how am i supposed to determine whether the case is exceptional if the standard is to take everything into account litigation misconduct the strength of the case any indication of bad faith and decide whether it's exceptional exceptional compared to what i have very little basis for comparison how do i do that so i do not think it's a numerical comparison i think we're talking about an uncommon case it's what we expect of a reason the little get so in the normal course a plaintiff develops a product they bring it to market they get a patent they're successful a defendant recognizes the success they look at the patent and they try to design around in a reasonable dispute ensues so that that's a normal case what we're saying to a district court judge the guidance we would give them is that this litigant this  plaintiff acted in reasonable ways and district court judges are called on every single day to make compared to what compared to the types of cases that the district court hears on more regular basis district courts handle to pat cases i think all cases complex litigation requires that against the act reasonably in procedural aspects and on the merits i think see this is what i find somewhat troubling about your take everything into account standard most district judges do not see a lot of patent cases and when they see one it's very unusual so you've got these patent attorneys showing up in court they're different from other attorneys sometimes and then the particularly if it's a very technical case they speak a different language they do things differently the district judge is struggling to figure out how to handle the case and then the one one party wins the other party loses in the party that wins says this was an exceptional case and  in in my favor under two eighty five now and the district judge says how can i tell whether this is exceptional if i attack if i had twenty five patent cases i could make some comparisons but i don't have a basis for doing i'm on the federal circuit has a basis for doing it well first of all congress congress has spoken and said the cases the district courts should do this and i also i think it he went back ten to fifteen years ago perhaps the notion that district court judges haven't seen a lot of patent cases might be true district court judges see lots and lots of patent cases many of those cases may not be decided on the merits the only thing that the federal circuit sees are the ones that went to fin conclusions so i do think district court judges see a lot of patent litigation i also think is that really true there's there are nearly seven hundred district judges in the country if if we had a statistic about the average number of cases that  district judge hears and receives a lot say a five year period what would it be i don't know what that number is you're on but i know the district court judges carry a widely varying docket of different areas of law and are called upon to learn the wall and assess the reasonableness of those positions as to it occurs to me that you really cannot answer the question of what adjective should be attached the court would be able to say my goodness i've never seen lawyers be able like this you're going to pay the attorneys fees for the other side could couldn't they could mccourt do that that's absolutely correct or so then how can we possibly define their us we can't because it is it goes up up and down even in a case where it's it's a close case you could still be exceptions it's that it's the degree of the unreasonable nature of ok so as one factor do you agree with  solicitor general's task that the fees are authorized when they're quoting necessary to prevent gross injustice yes we do your honor and i was surprised at that because i would have thought your friend on the other side would say that i mean gross injustice sounds like a very tiny portion of cases lower than meritless i mean it's injustice is bad too it doesn't mean i just lost but there's something very unjust about gross injustice well it's just some more adjectives and it's the test i gather that's the test you adopt well it's certainly what the what's caught with congress and the legislative history and what was adopted by the courts well the been out here for some civil minutes and you haven't even used those particular adjure that adjective which is that your test section two eighty five is remedial so certainly in order remedies something there must be some level of and justice i think consistent with the notion that a case is exceptional and uncommon the notion that it's gross injustice not justice and to my way of thinking when somebody a very weak case which we believe this one was and it cost someone two million dollars to defend it and they go through that and they pay that price tag a district court should be able to find that that is gross injustice and i think it is especially for many of the small businesses in this country when they face these types of suits mr towser can i just ask very quickly the factors that you would think a court should consider one is the degree to which the case is meritless another i presume is that faith another is litigation misconduct is there anything else or at those the three no there's more think it's there's no exhaustive list and for example even in this case and in part in theaters where the court said other equitable consideration we believe it is a totality of the circumstances anything that bears on the gross injustice and the uncommon nature of the case so for example in this case the fact that icahn brought a patent that it with all of its resources couldn't commercialize was indisputably worthless to this day they've never made a product under this patent that's a factor that bears on the equities of this case and the uncommon nature in is one that doesn't fall neatly within those categories the fact that our client licensed under a different pattern that shows its linkage  is another factor that shows that what they're asserting isn't reasonable so i don't think there is a laundry list but the categories that you identified are the big ones determination is a one or two step finding my belief is the district courts will look at all of the factors and make up their mind whether it's exceptional in that same step toward fees there has been the notion that first we determine a case is exceptional and then we make the determination of whether  should be granted i'm not sure once a court to terminate a case is exceptional what other factor would bear on that on that determination if there are no other questions i'd like to reserve the rest of my time for a bottle thank you council mr martinez mr chief justice and may please the court section two eighty five grants district court's discretionary authority to look at the totality of the circumstances and award fees were necessary to prevent gross injustice such awards can be proper and unusual cases where the losing party has committed bad faith or harassing conduct during the litigation or has advanced objectively unreasonable legal arguments just as courts upheld under the one thousand nine hundred sixty two the court should restore this understanding of section two eighty five and make for additional points that we think will clarify the inquiry for the district courts first most importantly the court should say that baseless miss and bad faith do not both have to be present in a case in order to justify a feel bored second the court sh court should say that district courts can grant fees based on a combination of different factors even if no single factor i would necessarily support the award on it's own third the court should say that an objective and reasonable argument can trigger a few award even if that argument is not so unreasonable that it's actually considered frivolous and fourth the courts would say that clear and convincing evidence is not required i'd like to turn to justice scalia's question in the discussion that occurred earlier about the battle of the adjectives so to speak we think that as i said earlier that the feel word should be appropriate or can be appropriate in a case in which there's an objective leean reasonable litigating position or objectively unreasonable arguments that are made in a case we appreciate that that's not  y i mean even if it is clear from other factors that this is a shake big country big company trying to suppress a little company even if it's clear that there has been outrageous litigation criminal claims and defenses and then you cite cases which say all of those in different instances it's been sufficient either alone or together but why don't we just copy that isn't that your view i think our view is is that those are the kinds of circumstance where you want to add to that all parties agree it's fairly captures what congress intended to incorporate from the case is decided in the late forty's so where does gross injustice come from i understood that to be your test you say these are authorised when necessary to prevent gross injustice to the defendant i think again you've got you have your long laundry list that doesn't say anything about gross injustice so i think a long laundry list reflects the kinds of circumstances in which courts operating between one thousand nine hundred sixty nine hundred fifty two interpret in the creek prior statute those are the circumstances in which those courts had concluded that there was a gross injustice and so in other words we think gross injustice is maybe the umbrella term you don't think good word comes from which maybe you don't want to say is the senate report on the bill that is similar to th that in nineteen forty six now this year there are some of us who think that's a highly relevant consideration we are comfortable saying that and we and we do say that we think it's especially salient and worth relying on here not just because it's the legislative history but also because that  same legislative history in that same gross injustice language was repeatedly cited and talked about in the one nine hundred forty six to fifty two cases and what i think mr martinez what the chief justice is driving at is there's a bit of a disconnect between your list of factors and those two words bruce and justice i mean that's what's really really exceptional that sounds like shocks the conscience that sounds like something you've never seen happen in the litigation system ever but then you're saying essentially ratchet i just skating we think that that data that the way to look at this statute is to try to figure out what congress understood the statute to mean in one nine hundred fifty two and it's very clear and i think both sides agree that congress intended to essentially incorporate the thrust of the judicial opinions that had been issued under the one nine hundred forty six statute those opinions repeatedly talked about gross injustice drawing from the prior legislative history and when they awarded fees in the wind and when they discussed when fees would be appropriate  the circumstances that we list in our brief or what they said would equate to gross injustice so i think in the abstract you may be right the gross injustice is a broader standard or maybe it's a little bit you know only the most exceptional of exceptional cases would be covered but in practice what congress was looking at what they were responding to and what they were intending to put in this statue it was an idea of gross injustice that reflected those bad faith harassing an unreasonable situation of what you mean why don't you say exceptional in justice we think that when when this situation involves say just an objectively unreasonable argument we think that essentially the same test would apply from the ija contests so is there anything other than the object the sleep baseless and that of the brooks furniture test that you would change doesn't all of the other factors that the court uses litigation misconduct all of that other stuff in compass all the factors you're talking about i think it does but i think it's very important if the court were to go in that direction as long as it elaborates a couple of the additional points that i mentioned earlier and it has to be a combination cow combination of factors both right the both are not required but it could be a to be saying that it it i think they they do but i think that catchall category in which they apply the two pronged brooks furniture test coverage potentially a very wide array of cases because it covers any case in which perhaps there's bad fa you do mention in passing right yes just a sort of aware of the as the court well knows the standard rule in civil litigation is that facts need to be established by preponderance of the evidence unless congress says otherwise the i for i case decided a few terms ago i think confirmed that general view here congress did not say otherwise congress did not embrace a clear and convincing standard there's nothing in the text or the history of section two eighty five suggest that it did appreciate we didn't have an i wish we had more time in our brief to get into this issue but i would just suggest that if the court wants to look more deeply and look at judge o'malley's opinion in the past case which i think has a very thorough and very convincing discussion of the clear and convincing evidence issue what is the difference between  how the federal circuit conceived of it and let me just explain why i think they use the term objectively baseless in some of their opinions when they're talking about that term they seem to use frivolous as a synonym in other cases when they're talking about that term they seem to use objectively unreasonable and so we think there's a little bit of confusion we think the pierce case makes very clear that justified and reasonable and sort of the same thing and that to a reasonable argument is not the same as merely a non frivolous argument and that's higher than the rule of  that the chief justice question earlier about why not defer to the federal circuit view on on the statute and i think two principal reasons first of all i don't think the federal circuit's few really has any basis in either the text or the history of  the section two eighty five so that's reason number one reason number two is i think if the federal circuit had had a consistent view over its history or if the federal circuit were not internally divided on this issue that may be a consideration deference might be more appropriate but here there is no consistent history and the federal circuit if you've seen in kill or past is divided thank you counsel phillips thank you mr chief justice and may please the court i would like to start with the objective baseless issue in this particular case because that seems to me the district court has done a very thorough job of analyzing every element of this case the district judge obviously presided over the entirety of this litigation analyze the case for purposes of summary judgment and then re analyze the case for purposes of analyzing the merits of of the claim and this is and whether or not this would be an exceptional case to be sure that objectively baseless means that there has to be probable cause that that lacks probable cause to go forward it has to be reasonably possible well in p r of course we were concerned about infringing on first amendment rights and that's not the case here well i think you could argue that there is at least the the run of the mill cases when you're talking about a situation where you thought where the assertion is that the conduct of the litigation the bringing of the litigation that itself sure used to be on rule i don't see how you could possibly say that it's unconstitutional to make the loser pay this is not your best argument it is not my best argument on the other hand if you if you go back and look at christiansburg christians were good in that case the court also did treat it as a first amendment issue but it's still recognize it's an policy of trying not to have too much interference with access to the courts then  t objectively basis is a standard that every court knows how to use and it goes directly to the results of that from sanctionable con misconduct seems to me that under the way you're articulating things the these kind of rules that would have rendered the litigation sanctionable existed and so as a consequence of that and i think it's important put it in context because you know when congress did this initially in one nine hundred forty six to be sure it's the senate report that talks about gross injustice but it is the decisions of the courts that adopted that approach of gross and justice and then when congress in one nine hundred fifty two incorporates the exceptional case standard revisers notes say it's designed to go back to the legislative history and the decisions that have been in turmoil why is it always have to be objectively based i mean i've read enough cases in this area to be able to approach it as a district court judge who is not expert i and i patent the following for a computer in or somebody is name ask phone number and they'll give you the phone number if you put in the right city that put some listen the computer they can patent that when you add a couple of things and they apparently you can have an argument that they can patent it ok because it'll be very abstract language it'll be able to pull patent almost anything no you can't finally but objectively baseless the patent attorneys are very brilliant at figuring out how to do this so we're never going to have attorneys fees in a suit if that's your standard well but you could couple that with just barely over the line what line is vague line no one knows what it is in addition all they did was say we don't want to go to court and cost you two million dollars please send us a check for a thousand we'll license it for you a unit of forty thousand people a month somebody challenges it and goes to court it costs them about two million because of rediscovery insight ok can you see where i'm going yes and so i do not see why you couldn't have an exceptional case were turning should be shifted but if i'm honest about it i cannot say it's objective lee baseless i can just say it's pretty close to whatever that line is which i can't describe and look at all this other stuff are you going to say that i can't shift i think the problem with the approach you take you propose there just as priors you're trying to deal with a very small slice of the problem of litigation that you know what you've described you know but i'm proof course it may be a small slice of litigation but it is a slice that costs a lot of people a lot of money but the principle i would like to know if i do run across that civil slice why cannot i have the district judge say i've seen all these things taken together they spell serious injustice and therefore i'm shifting the fees ok why can i not do that even though as i just said and  i cannot in all honesty say because froogle is given the standards for patenting that seem to be administered because when congress and the act of the statute adopted the exceptional case standard it me essentially to require that the litigation be unjustified and vexatious unjustified means that it is baseless that's the understanding that existed all along it has to have it's not that this is zero merit but it has to have enough merit to nothing well if if at the end of the day there's nothing there then i think it is objective like baseless even though they've gone through the litigation but what the distraught did nothing unfair it's highly abstract language i gather you like i have read some of these know very hard to understand and when you get to the bottom of the abstract nature of the language plus the fact that it's had something to do with computer import plus the fact that you know you  strongly it's baseless but you really don't like to say something that isn't true and you can say well i can see how somebody might think there was something to this claim just in that tone of voice which you can't write down that tone of voice imposing a standard that was too narrow that was didn't take count of all the circumstances were something could be unusually to see unjust and then let them apply no clear and convincing but it's up to you district judge you're the not they objective basis in this standard ought to be applied anymore than the second case you're going to hear today is subsumed by this case those i mean they all come out of the federal circuit but it seems to me you ought to hear if you want to grant separately on the question of the standard of review or the standard words right but that couple reasons for that one is obviously the statute was passed long before the lanham act was enacted and against a very different backdrop in congress clearly in literally sticking its toll in the water of allowing prevailing defendants to get fees from plaintiffs in a situation is pretty unprecedented at that point in time set the standard very high and intended for it to prevent gross injustice the legislative history of the lanham act which which this court apparently was hundred fifty two in the interim action followed that the alternative is there is a different history patent litigation and trademark litigation are very very different in the impact that they have and as a consequence as in me you could in fact say that congress didn't intend that but but that seems to me in some ways the tail wagging the dog and that's a mistake one thing i do want to say just this prior in in response to your argument about why don't you leave it for the district court and that in that circumstance that the problem is what you're saying is the plaintiffs who bring patent litigation with with in this case counsel's advice and experts advice they got the machines they did everything you want to litigants to do before bringing a litigation they handled the case they spend more money on legal fees as the plaintiff than the defendants did in this case they have to hire an expert they put in in play the validity of their patent there are lots of disincentives for plaintiffs to bring in this case and at the end of the process based on a completely indeterminate standard the district court would then retain authority to say i conclude that what you did here is on reasonable that's true but you could then appeal i mean you're making an argument on the merits their own really the question is who's better suited to figure out whether this is a this is a really special case and and if you know of course you're right you plaintiffs are often rightly so thanks and sometimes they're wrong so they cost everybody a lot of money so you go to the federal circuit and ask them to review it for an abus advertisements on television when science and kirk says if you think you're patents been infringed call us why because there's not a long line of people who can bring plaintiffs happy cases they are expensive to litigate and the ultimate and you have to get an expert and and at the end you put your friend goes to litigation yes but if if the alternative for the defendant is either you know spend two million dollars defending or pay off the ten thousand dollars that that the plaintiff demands to go no way that's an easy call well i mean i don't well that's an easy call for the fed it doesn't make the cut that doesn't make the decision for the plaintiff all that  at the beginning of the process because as i say it's both expensive and it puts the validity of the patent at issue and in most cases it was a do or federal circuit a long time ago not that long ago said that the inequitable conduct that is challenging defendant necessary difference of who can act badly of course and to the question is really who is likely most to know and i think probably the district court but then if you give the power to the district court there's a problem of course that you'll abuse it so i say well then go to the federal circuit and say they have you see well there's another way of approaching it and that is have definite standards which is what you want and then the difficulty with definite standards is i can't think of a set of definite standards that doesn't do what you don't want to have happen that it leans one way or the other i mean it looks as if you see the federal circuits current standards leaned pretty much against the person who was sued and it looks like the and so the government comes up well we can't do better than this it's a long last and nobody's been able to think of some so then i say ok let's try the first approach which is what we do with the lanham act that's a whole long story but what he would like to see right in the answer to that is that the standards for an equitable conduct or reasonably well set they get applied pretty routinely and they create exceptional case determination litigation misconduct the standards are pretty well set pretty well understood and they give rise to the exceptional case determinations and award of attorney's fees this case is unusual in the sense that all it deals with is that bucket that talks about whether or not you had a substantial basis for putting before the court this litigation in the first instance mr phillips i realize that you had this argument that this statute was before rule eleven so the superfluity argument doesn't work but just as a matter of fact would you or standard give the court authority to order fees in any case in which it does not have authority by virtue of either rule eleven or its inherent authority are you are you asking me that just about the baseless litigation or all of two way because clearly an equitable conduct will infringement and certain forms of litigation misconduct which might or might create a basis for fees against the lawyer might not actually operate against the against the party where the obviously two eighty five operates against a party so there's a whole range of behavior that is controlled by two eighty five has nothing to do with real love and it's so yeah i mean there there's clearly some overlap between them but that overlap shouldn't be shocking because again to it to eighty five was it and acted in one nine hundred fifty two and rule eleven didn't come into being a serious force until nine hundred eighty three let me make sure i understand you give me an example of a case in which under your standard two eighty five could be used to order a payment if it is but rule eleven and he went authority would not allow again i mean the clear one and if you're only talking about the bait the baseless in this component i don't know that there is one like that if you're talking about an equitable conduct they would all be because that will leaven will never reach an equitable conduct involving the patent trademark office because it's completely irrelevant to that so the statutes do have some overlap but they authority wouldn't get you anyway well litigation misconduct is something that may or may not go against the party depending on which rule it is and how it plays out so there and the court said long recognized that certain forms of  litigants may lead you to a particular through it to determine that something's exception an exceptional case so that seemed to me clearly there might be what i'm what i am conceding is that i can't and vision a situation where you have brought what a co unprecedented at the time and the best evidence we have of of the circumstances in which congress wanted to have those fees imposed is to prevent a gross in justice and a system e nothing better suits that test than something that is objective leave basis as as just that one bucket within which to eighty five operates the other buckets obviously equally involve situations so we rose and come in i'm sorry w argument if this court concluded the bad faith as it shouldn't be an independent factor that would that would not bother me because the district judge already found that this is objective not baseless so that there ought to be a basis for a ferment on that ground alone  alternatively the court obviously could wait for another case in which to take up that issue i know but we don't need to win that in order to prevail in this particular case and it certainly wouldn't cause me any heartburn if the court were to to to jettison that part which you just  convincing well i know your argument that said it's not in the that it's not before us i mean the rationale is clear and convincing obviously is that is whether you assume that the pad was being implemented in good faith or being being brought in good faith and therefore creates sort of a presumption in favor of the of infringement and legitimacy and then clear and convincing evidence is obviously designed to make it harder to get over that hurdle again i am not here to defend the clear and convincing evidence standard i read the concurring opinion on the federal circuit as well and you know but it seems to me clearly not in this case it's not succeeded by the question presented and that's a that's an issue that the court ought to wait for another day before i want have to defend it at that time telfer you have three minutes remaining for what we're really talking about here is house extreme should the test be for an exceptional case and that's what this boils down to should it be at the extreme of frivolousness or what we believe objectively basis means the same thing that's how the district court used it or should it be something lesser that's practical the plain meaning of exceptional doesn't mean extreme as the d c circuit find there's an important public interest in making sure quote worthless patents are not used to restrain trade four weeks ago in medtronic this court found that we should have an paramount interest in making sure the balance of patents are not in recently stretched to get tease and so we consider the larger objectives what we're looking for is a balance and if you looked at this court's precedent in march where there was no standard with this court found is when you look to the larger objectives and you want to encourage good conduct and you want to discourage bad conduct you said it reasonable you don't set it at the extreme of frivolousness which smart lawyers know how not to do that how not to get sanctioned under rule levon in the complex world of penn cases it's not hard to avoid frivolous cases so setting an extreme standard would defeat the whole purpose of the act and it's inconsistent with the language on the topic of injustice versus gross injustice i found that very interesting because certainly exceptional there's nothing about it that signals gross injustice versus and justice and to the extent because i think the question was asked by one of the justices well doesn't that signal extreme conduct i don't know that it does or doesn't but certainly the plain meaning of the statute doesn't and so to the extent the gross injustice is used in this court's opinion it has to signal something other than the extreme conduct we can debate whether winning a hard fought case and spending two million isn't justice certainly in my view if you defend a case and spent two million dollars especially one like this where every core element was missing that's gross injustice but i don't know what the standard is justice or injustice or gross injustice it's just not extreme and that's how this court's opinion needs to be written if we're going to discourage the maintenance of unreasonable cases and there's not fifteen amicus briefs in some of the largest technology companies in this country before this court if it weren't the case that there's a problem these are companies with the self interest in a strong patent system they have hence they sue and yet they're here telling this court to not pick an extreme standard thank you counsel case was submitted