him to the the court's decision is based on how people acted what they did what they were doing at all times and then the lower court just got a can argue this anywhere in your briefs you stand up in the first argument to us is the lower court got it wrong we always found the path tell me show me where look in your brief that argument is made sure i'm pleased twenty one of the opening  got it wrong and we did this seems to be at best an argument that our case and our arguments were not in fact frivolous in fact another court could have come out the other way not that this court came out the wrong way we look there's a million cases we see that could have come out one way or the other a lot of cases or could be closer so your argument here is at best that a different court could have decided this case differently it's not that this court got it wrong it's an experience we go on and we say  the entire time no i don't think he said they knew the defect in title what he said is they had reason to know there might be a defect in title because the two gentleman names of which hit me at the moment mr gro i had had that in the earlier email exchange acknowledged there might be a problem here but then just decided to move on to other things and ignore what the central problem which could have been rectified by simply them finding out whether or not documents have been filed in this case as they were supposed to have been they may have had a good faith belief that that should have happened in the regular course of things but they at least demonstrated in this court relied on the evidence that demonstrates that they had a question about whether there was actually ownership a legitimate question and didn't pursue it but your honor in your discussion just now you talked i don't we just assume for purposes of this argument for the rest of the argument that i will not go behind the district court and decide whether it decided delaware corporate law properly because even if you have a single errant sentence in your brief you didn't meaning explain delaware law to me in a way that i could one appeal make a determination of the accuracy of the district court's decision on the state law question you didn't cite to me all the relevant delaware statute you didn't go through the law on explain it to me so from here put your problem with this argument is that you're really asking us to to rethink the discretionary aspect of the court's decision let's let's talk about prevailing party for ok now let's assume that i agree with you that this missile prolactin standing is not a prevailing does not make one a prevailing party did you preserve that issue  ok but the places that you cited us two were only places in which you had discussions but that talked about the fact that well we can just restart the case so it's not a big deal i don't see you actually saying to the lower court that there was a predicate that needed to be in that it was a requirement prior to the award of two eighty five feet did you ever make that argument i don't think we don't more precise than what argument whether or not you can refile because you certainly stressed unlike your blue brief various pages that we can we we can and in fact did refile this litigation and now we're proper owners would that have mattered and what i mean by that is suppose you came to court asserting ownership and you didn't in fact own it someone else did and suppose they were unwilling to assign it to you such that you would never now now never be able to sue when this patent with that matter to your view of whether or not the prevailing party status had been met i know that's not your facts don't worry either stand but i want to know would that matter because that would seem to very much change the circumstances as between the parties in a way that you're we're i get it but but i'm trying to understand you know the at the impact on the law if i decide that standing as a whole and a dismissal for lack of standing as a whole as opposed to maybe some nuance in this case but this is your argument was  missal for jurisdiction dismissal for standing doesn't count and so what i'm trying to understand is if it doesn't count and yet you could see factual scenarios like the one i just raised where it does seem to meet the legal test right which is changing the situation would go in they would find somebody else on the path if you went in there that you're outside the scope of the case was dismissed for you argued but you argue this to us in the blue brief you argue that one of the things that should help me understand dismissal for lack of standing doesn't change the relationship between the parties is the fact that you do now own and were able to refile you make that argument on hearing the one who told me these facts are relevant to my decision making here you again but isn't it equally is it understand why the district court would have thought in that case why should they have been put through this defense in a case that you're now dropping for for other reasons for to avoid perhaps to avoid having it go against you or perhaps just because a smaller straightforward because it's quite conspicuous is it not that circumstances because it is an exceptional circumstance where when a defect in title is pointed out you drop the case you file again having cured the defect although you now tell us it we did your honor it was a question of timing the panel was about to expire the life of the patent once the patent expires the six years step basically statutory period we can collect damages the clock is just taking in every day that goes by the value of the assets we basically would quickly eat up another two years of life or we were able to go to delaware we followed the instructions of the judge because because the judge gave us guidelines that said i do you go do this that's fine it's me that'll fix the issue and so we did wh she told us to do because we we were we were back in the saddle like six weeks later not two years what one of the things that odd about that the lower court decision is the courts repeated reference to the ownership status of the patent holder and there are some statements that said there has to be some deterrents against trolls actually describe them but you don't actually raise on appeal whether that is an appropriate consideration for the lower doesn't but you didn't raise that one on appeal you didn't complain about that you didn't say that that would that wasn't proper consideration for purposes of the court's exercise of the question no we did not on this appeal we did that the only reason that it found that this was an extraordinary case was simply because that court had not had cases involved and she said the fact i've never seen a case like that that alone and this is a direct quote that alone makes this case exceptional she did  for in the very next paragraph she said additionally surveying that italian the circumstances i find that at least two of the factors in the court's suggested district courts consider one imposition of fees and costs here objective on reasonable and the need in particular circumstances to advance consideration of compensation of deterrence citing talking and that's that second aspect is where her whole thing was all about on a tirade against trolls and the reality is whatever policy attitude you have toward trolls who there is who owns the patent is it might be relevant relevant for purposes of determining whether an injunction is appropriate but the say that because someone is  troll in that judge's view that therefore there is more of a need for sanctions seems kind of out of bounds doesn't that's not actually how i read her honest opinion while she explained that this was a non practicing entity whose sole purpose was to file lawsuits and therefore should have had a heightened understanding of making sure that it had standing the way that i read her on it it turns was not specifically aimed at non practicing entities or patent search it but instead saying no one should come to my court unless they have made certain that their record is clear that they own their patent i don't think she was saying like a if you like an article about how bad the polls are and how they're you know you know sucking the life of a society i if this is not this was not just a passing reference to the fact that they learn of practice and my understand that you are but what i'm saying is that in page eighty seventy nine of the record when she specifically comes to the target signing she specifically holds that eighteen was aware of the possible defects in title from the very beginning and goes on to say that the fact that they took no steps to confirm it was something that she was trying to deter that she was trying to make sure that if anyone whether troll or not realize  potential defects in title they should do something to rat to make sure that they share those defects of for they come into court is that consistent with her finding that there was no bad faith and that actually they naively believed that they had it that they believed that they had  what she first indicated was that there's no proof of bad faith what she said instead was this was a risk that was taking that when they understood that there was some potential problem that when mr gross said i don't have the documents i'm not sure whether or not we can said without ownership but let's actually read the sentence absolutely this sanction will serve as a deterrent to other p a s who might prefer to ignore doubts about their title warning them to make sure they own the patent before  that that's the quote from our opinion doesn't that sound like she might be directing the set her what she calls i think that's one portion of what she's driving at but if you continue to read the opinion down through the rest when she's distinguishing from the tra topics onto another topic and so my reading of the order was that that was also a portion of what she was hoping to char i understand your honest question and it turns out and you does this because i think when you said no no she's applying this to everyone don't come into court i think let's just say that's a bit of an overreach on your part which ministers your credibility a little bit and i apologise for that i did not intend to do that in any way but i do believe that in fact the notion of deterrence does go to all entities too perfect you may think that but think putting aside the waiver question your red group seems to call laugh the distinction between which i believe there to be a distinction between need to there has to be some determination on the merits and there has to be an alteration of the relationship so i get what you're saying is that you believe there was some difference in the relationship between the parties but you have a single case that says that it does this missile based on lack of standing is a marriage based determination i do meaning of prevailing party now that case was a u s c case under title seven it was not a patent however what the court said there was that congress has included this is on page six the very beginning i for a defendant prevailing party status could occur when a case was dismissed and that case and that you see case essentially was also a standing issue because there had to be various steps that had to be taken before the lawsuit to be filed that what the court found there was that the e e o c had not accomplished all of those steps and i would say that's directly into the notion of perfecting title to a patent and here title had never been perfected and therefore the dismissal was in the legal relationship between the parties but a defendant of six to prevent the alteration to the extent that's in play to save and the court both on to say that the distinction between merits and no merits has doesn't have the same meaning for defendants that it is in fact the change of circumstance the change of relationship between the parties that matters the court goes on the supreme court goes on to say that in fact the policy  clerk of the court on july twenty eighth and the case itself we mailed that july twenty i actually have a i have a copy of it here with case citation and the file endo date at the top and we mailed it to the court and the date of the case itself was may nineteenth and it was actually printed in electronically available only after we filed our briefs so that's why we sent it in on july twent and and so we actually believe that that case controls here and it's a very it's very very on point because supreme court is basically saying that it would forte the policy of having these very types of statutes if we were to look solely to whether or not you had to go all the way through a merit based distinction in the vacuum and didn't wave this argument about prevailing party status why would the question standing in this case with the facts in this case to really change the relationship between the parties for a number of reasons your honor but the most important of which we can look to the sweepstakes case that we actually cite in the sweepstakes  the court there while not finding that the case was exceptional did find that the prevailing part of status had taken root after standing issue because the amount of damages of vailable to the parties changed and so the relationship between the parties did in fact change at one point they were able to claim back six years but having to refile changed the amount of time in which the damages would take place in this case it was almost three and a half years of damages it was taken off the table and in fact there were a number of products whose end of life happened in that three and a half year period so they were no longer eligible to even be brought into the case so i think that's the principle reason if you don't look to the c s r c r s t supreme court case which case the holding was you hadn't met the condition precedent here in order to refile they actually had to go back to delaware appoint a receiver have the receiver transfer additional assets which change the legal relationship between the parties there as well now in the and then it was filed only after that so they were not even the same party holding the same materials that they held in the first case a legal relationship between the parties definitively changed now secondarily to that we actually filed a secondary motion to dismiss because even though they've gone back and gotten some of the assets from the a v c entity the assets that they had weren't sufficient to now of course none of the arguments that you're making right now about the change in the amount of damages for example amounting to a change in the relations between the parties were were made before the district court that i saw but is your argument that will of course they weren't because they waived the whole question of prevailing party and we had no reason to introduce it because i would have a hard time if i had to decide this case utilizing those facts that you just gave me because certainly there's no evidence in this record as to told oh you're not a prevailing party and so we did the research to find as close cases we could sweepstakes was the closest case law that we could find in that phase like i said even though it was not a finding of an exceptional case the court did find that there had been a change in the relationship of the parties by virtue of the fact that damages had been lost because of the new timing that had come forward i just have a problem with the notion that you can waive the actual legal predicate for a determination i mean allowed under it's under its discretion and if you look at it but you never said because you're preventing part and she didn't say that those words were not in her or i don't like his we couldn't remember and say determine whether or not there's prevailing party status here and you can consider that in case all of us come out of the supreme court and in assessing exceptionality assuming there is prevailing party set is that you you should not take into consideration the the nature of the patent ownership i honestly believe your honor that in fact the prevailing party status is and has been met by virtue of the fact that we won the case below and there was a change in the relationship the parties as established by all the arguments that we've put forward here and they're directly supported by supreme court precedent that your honour's can take note of at c r sixty versus e e o c so i believe that all of that tests had been met so to the same extent that pattern that can now argue for the first time about the prevailing party issue we can defend ourselves on the prevailing party issue to say wait your honest and take note of that and i believe that the status of the relationship did in fact change and we directly fall under the c r c and although she didn't  express the address whether you were not a prevailing party whether dismissal for lack of standing counts as the merits basis and she may not have addressed any of that but you move for fees that asserted in the briefing you were prevailing party and they responded and didn't contest it current state of the law was that prevailing hard status needed a merits determination and that standing was not america's determination right i was not able to find any cases that said that simply standing was embarrassed terminations i also did not find any that said that it supreme court did not indicate that you still don't need some kind of precludes judgment in fact the supreme court even brought it up and chose not to address it in the in the decision itself because the parties never put that argument within the  court dealt with the fact that it could still deal with things even if it was waivers so even if you find that there was a waiver if you can still take our side in the prevailing party space that in our brief on page or i guess th case and in civil right actions courts frequently apply a heightened standard in deciding whether or not to apply attorneys fees that we don't believe to present facts with regard to the going back to the district court's opinion and to really find a couple of issues that i never really got to know that were raised by risky for his that under discussion we talked earlier about the by itself decision by the court the fact reasons why the real decision was they retailed patent but in in fact within the within the body of water itself there are repeated examples of contradictions by the court where she made a finding of objective and reasonableness that just don't make sense for example the judge said quote that chang homer chang was not knowledgeable about corporate matters because he was just an engineer if you read the opinion it a seven makes no sense at all the man was was a c e o and chairman of the company you've got to know about corporate matters that's that's that's really it he's not an engineer i don't know why she characterized him as an engineer but that was part of why we were objective legal reasonable