here the district court's decision is replete with both perhaps most emblematic of those errors is the district courts finding that this case mix is exceptional because are no continue to assert infringement after supposedly being on notice for several years that the zero seven eight patent was invalid in light of prior art let me take you to the discovery of yes right regarding that issue in a blue brief you status conference or ask the court if it could proceed with discovery order or at the very least notify the court i mean as some a sat for a long time ago at the trial level i would expect that your honor i think from our perspective at the time we were we had if the record reflects that we were asking the court and the parties for a stay of discovery for months in advance of that decision on the motion to stay at the end of december of two thousand and fourteen the part of the call come and the other defendants vigorously opposed that they wanted the case to proceed and they wanted a case proceed quickly and second that they were putting they were putting time constraints on our ability to go out identify direct infringers saying no they should only have four months to get direct infringers the trial court issues of decision saying we're not going to stay this case this case has been around too long you were going to get going now now now and we inferred from that that our clock is ticking in other words we can't sit around and wait for clarification from the district judge because if we sit here for two months that might be two of our four months to go find direct infringers and that's why we said we'd better get started now an abundance of caution and we formed the call come that we were in fact going to go do that when the court clarified and said no that's not what i meant and i mean for you guys to sit on the sidelines and wait until i clarify in this issue  next we immediately follow the court's instructions and did what we had done before which is reach out to the third parties and say suspend your efforts until we get back to you so look i take responsibility for our misinterpretation of will it miss it's it's incorrect in that the court made sure to tell us that in fact we weren't going to begin third party discovery until the court said we are going to it's not misleading in if we believe that to be the case you believe that the pardons had agreed to resume discovery we believe that the court had had authorized the parties to begin discovery now saying the parties  agreed you know you know i perhaps it was an unfortunate choice of words but it was the basic premise of that whether the parties agree to the court orders that the basic premise was we're starting to scuffle and the idea that we had at that point in time is short window to do that discovery was in our minds a pressing need to go out and start looking for the direct infringers of the district court and qualcomm was asserting that we had to have to maintain the d we dealt with a number of things we could not control ultimately in the case including a decision from the supreme court that changed the law in the middle of us and a duty to terminations from this court that i respect and follow the men the  qualcomm were the fees that it were attributed to its loss on the induced infringement aspect of the appeal in the first appeal in the case in the motions of this mess i thought that scored all cost i would have to go back and look to determine that i don't remember off the top of my head if that all cost on the appeal i think i think all the fees for the appeal the least for a third of it was it was cut off because of the induced infringement point to respond to the developments in the case could result in of the determination that the case is exceptional from that point forward and i don't disagree with that case lawyer i rather think that however the developments in this case are not  examinations or to petition until six months before we actually did so the rosenbaum patent was the was the prior art was the key piece of prior art that we cited to the patent trademark office to say look this is this thing requires us to submit this for your consideration reexamination we ask you to do so with before january of two thousand and thirteen no one had submitted in their invalidity contentions or rosenbaum prior art for anything and it was only th years to submit to this pattern for examination in the face of this prior art is clearly incorrect we did not get the rosenbaum patent until six months before that reexamination when you look at our rigs emanation petition the rosenbaum patent is key is connected with every single one except and in them which we had which had been cited in february of two thousand and twelve or two thousand and ten but we submitted that only because we are looking at now and i'm not entirely sure what the court was looking at it might have been talking about any of them but the simple point is that and by itself was only one of the substantive changes to the patent through that process that got the patent over and above that prior art i think one of the in court points is that the underlying basis in premise of this report's conclusion is that somehow the patent was invalidated she did not hand off any aspect of this case to a magistrate she personally handled virtually every motion that was that was brought to her in the in the case and she personally conducted more though in terms of whether or not people have weighed any arguments with respect to one that that was one particular aspect of the other route and even on that one as i believe you mentioned the law is clear that a party needs to reassess their position as the case goes on i i don't have the ear of alex right off the top of my head but it was a two thousand and seventeen when when that issue finally came to the court so even on that issue there are required to bought in one on one motion by definition that both cases are all exceptionally well again made it her decision wasn't any one thing in particular the other route was on all issues there was and she did that sentence was broad enough to that the case and every time we have an m p l that that the court is allowed to say well you know there was defendant a and even though they had a great case against dependency i'm going to say except that because they didn't have a great case against  what the judge can do is look at the conduct relevant to qualcomm in the context of the overall case so you for example you see several times she she referenced that an argument relative to qualcomm was similar to what the plane as it argued relative to pit ohio which is the case that that went directly to summary judgment it didn't come to this court and ultimately fees were awarded because they never were able to come forward with any evidence to support their infringement allegations and certainly you know for her to say look i'm going to look at that and then i look at the conduct relative to qualcomm in the context of what i've seen from them in the entire case was i'm sorry where are you quoting from i'm quoting from the court's opinion yes i'm not recalling that particular sentence i she certainly she forwarded this court as saying she was not required when the overall circumstances of the case show exceptionality she was not required we have certainly said that in some instances the entirety of these may be appropriate but we have said there has to be a causal relationship and now we have to say that well she did mention the other pieces so i don't want to i want to give up on that but if she cut back on the engine right she did shoot first of all she did not award qualcomm all of its fees the question came up earlier and i can clarify that for certain qualcomm did not see any the entire appeal to this court in two thousand and eleven in two thousand and twelve and it excluded by third of its costs associated with the time period where that motion dismissed was before the district court  and laid out in its very detailed the request the other things that were going on in that same timeframe that justified two thirds of the time and there were a number of other smaller issues things that were excluded in terms of  billing hours else so pointing out that qualcomm actually has found a cost sharing relationship with another one of the defendants and so it wasn't seeking any of the fees that were incurred relative didn't actually pay for that were there were built the clock on the other thing that i think is important on this issue of the amount of fees where it is that the things that the judge did identify are not because counsel keeps trying to say that when they went to the patent office in two thousand and thirteen that you know it really had nothing to do with then and that was something that was focused on by the patent office not by us we were focused reference that was being submitted in reexamination this wasn't some you know this is just part of our duty of of candor you know read our long i d s this was the v anticipatory reference which they brought to the pa this was three years after they had told the judge that they had closely studied the prior art cited by the defendants and that none of them called into question at all the validity of their past so again that this idea that that n n m was just just came out of nowhere to them is just unsupportable by the record here and certainly was not an abuse of discretion got taken away up on a pleading that as judge beckwith i think was very certainly within her discretion and i think is correct for her to find never should have been played because it was clear on the face of their own pleading that qualcomm's software and hardware had substantial on infringing uses it let me also talk briefly about that that third aspect of the judge's order of the violation of a third party discovering you know clearly a judge back with you gave that a lot of weight but it was appropriate for her to do so in this circumstance for a couple of extra reasons that didn't come up in the discussion  earlier this morning was one of them is that this was not the first time that this judge had experienced what she considered to be inappropriate behavior by the plaintiff in this case  to plenty of pointed out it was contrary to the order and stop and we're going to get this in front of the judge as soon as we can and they didn't at that point say oh i guess you're right we will back off it wasn't until we we got it in front of  counsel said well this is a case where we weren't talking in the normal course where the communications line back and forth in the normal oh i'm sorry yes there were many communications going back and forth in the in the ordinary course the other reason i think that that that judge beckwith recognize this as a particularly important aspect is because we are talking about not just third parties in the abstract but customers you know judge beckwith a veteran judge and she knows that whenever you start subpoenaing customers you are risking interfering with customer relations relationships you know and here we were talking about one or two subpoenas we were talking when are now four months later unilaterally reactivates those subpoenas issues brand new subpoenas if you it's not surprising and certainly very reasonable for a judge back with  as as a major transgression that when viewed with these other things that are identified in her order render this case exceptional just briefly your honor again going back to the issue of the amount of the fees the judge beckwith's order a mad again did exclude a substantial specifically say that this dollar relates to that is because in those cases it is with the entirety of the litigation that was the basis for the exceptional case it is not the same thing as me it is a is if you estates the law and then proceeds to award fees with a misunderstanding of the law how can i be comfortable that she got it wrong i think again that the supreme court cases that deal with that right then i think the ultimate answer there is what she ended up with did reflect the extent to which the case was exceptional because she did look at the overall circumstances she did conclude that there  identified three specific instances at least two of which go to the strength of the case in addition to litigation misconduct and then l so it discussed the overall route which again goes to what's identified in octane fitness which is the overall strength of the case by the prior art and we should have done something about it sooner the problem with that is the pattern was never invalidated by the product we always took the position that the prior art did not invalidate that we were able to negotiate changes that eventually made this court determined were one was a substantive change of this patent but the prior art never invalidated the patent we were not required to go to the rig to the p t o for examination we chose to do so as litigation strategy earlier than this issue would have been addressed in the normal course of the district court proceeding giving up the protections that we would have in the district or puting we wint affirmatively giving up those protections to seek reexamination to a determination of the litani with respect to this ad and we came out of it with a valid patent how in the world can we beef that be exceptional for us to have to have a turkey it soon and that this patent would be invalid when it was never invalidated based on the priority that in my opinion is a clearly eroni s binding it cannot be right it is not record setting aside the fact that we did not wait three years and  have you had in front of you parties who really believed that they had the silver bullet to the plaintiff's case and sit back knowing you know i'm just going to sit back and let the you know the fees run up the time go on if you really believe you have that you go the district judge and you say i want to leave to assert and now that this think puts an end to this case no one not qualcomm that any of the defendants did that why because they didn't believe at that time that it was so clear that we were on reasonable proceeding in this case because they decided the n m reference we took the position throughout that in them was not dispositive of this case now before my time is up i want to respond to judge ward's question  attempt to justify that i was simply explain it as to why it was in there and i might see my time is up i thank your honour's for your time in your attention and i