that the lower court abused her discretion in denying our motion we think there are two bases for an abuse of discretion one is that judge mark boal set out certain parameters which had to be met in order to find an exceptional case and we believe that those parameters were much higher than those suggested by the supreme court in the octane case the second is that we believe that even with the higher parameters if one examines the case and finds that we met those parameters that this is truly an exceptional case the judge said that it was certainly unique but later said that unique doesn't mean exceptional but it is uncommon we had several instances where the plaintiff and acted in a manner that really requires that she be sanctioned in some some way you're not arguing litigation misconduct or you know we're arguing patent office misconduct we're saying that at the filing of her case she failed to disclose the public use that judge buckles found and therefore filed her application fourteen months after a reduction to practice which was held to be public use but that was nowhere revealed to anybody second in her continuation in part the judge found that there was or at least in the claims that were leveled ultimately allowed on the  found that no reasonable juror could find substantial support in the specification for those claims on the reissue issue or not on the reissue question even if ultimately that's true with honor the judge also mentioned that it really wasn't the p t o s it was the p t o that came up with the claim rather than the inventor and i would like to refer to judge learned hand in his nine hundred twenty four decision where he pointed out that patent the solicitors went there and by persistence will overcome the patience of the examiners which i think is exactly what happened here this a real issue case was pending for close to four or five years and it was have only after three years did miss dr small advance the error that she felt had to be corrected but the claims that were ultimately allowed were not the result of that error they were in completely different area they were in the area of the recess which she had abandoned in seeking the allowance of the continuation in part application but the judge also pointed out that the real issue out with cation was questionable that she felt that even if we don't consider the idea of claims being recaptured we do have a situation where the judge felt that the revision wasn't completely applied for until long after the time for a broadening reissue had expired but here was yet another point the judge went to the question of patent trolls and came up with a decision that defined p within six days she had filed suit against several defendants and a couple of years later filed suit against additional defendants not to defend a product but rather to see some kind of settlement based on nuisance value and we believe that this case has gone from the task over to three hundred sixty three docket entries it's gone from two thousand and six to date which would seem to be an unusual case it's unusual because of not disclosing the prior art to the patent office at the that small didn't assert the chip for sex against your client know it but it effects the other case because it's a continuation part of what was now to be found an invalid patent based on in other w initial failure to disclose changed the whole family it destroys the parent and it must adversely affect the children because the x the office would not be able to examine the case properly they would not be able to have of reasonableness of her claims is that that the trial court date exclude the two for six from consideration we don't have to consider the two for six human when we're saying is that if you over rome look at the behavior of the plaintive this has to be considered an exceptional case there has been at least three or four years of extensive litigation just to determine that the initial disclosure or the reduction  practice was fourteen months before the application for patent but if for the application for the chip or set of the first of the parent ok and yet we have a situation where this is uncommon it's unusual it's unique is it not exceptional it's exceptional on even on the look higher level that the judge said because she said no reasonable jury could find support in the  is no product which is defending she seeking she delayed her prosecution over the years to intensify the potential targets and then sued them within six days after her reissue came out and that's what the judge buchwald defined as a patent troll one who immediately filed against a number of defendants primarily for a n settlement rather than to defend the patent she she said that of dr small and yet i did not consider that and reaching a conclusion as to whether it was an exceptional case or your problem is that this discretion sir your problem is that this is an abuse of discretion standard yes your honor and we think her discretion was abused because she failed to even follow her own higher standard which we believe was an abus discretion to impose a higher standard than that offered by the supreme court in the in this case which in effect lowered the standards for an exceptional case so what part of the articulation her standards do you think is outside the bounds of acting well she said it had to be something exceptional in terms of either the prosecution of the case or in the that you can get exceptionality without looking at how the cases prosecuted we can look at exceptionality by the way the implant directors not show the judge a book was decision was clearly unreasonable arbitrary fanciful or based on clearly erroneous findings of fact or conclusions of law if it did bucholtz say that you have to have actual inequitable conduct before the patent office or litigation misconduct before you can get attorney's fees no and in fact in x will conduct isn't even an issue in this case addressed she addressed whether whether a doctor's most arguments were objective basis look at the cheek she actually didn't discuss whether the arguments were objective basis she only looked at one side of it she didn't discuss that recapture question should the top court if they're going to decide if anything the subjectively basis that the servant have to look at every single claim that's asserted well is rather saying that she didn't address recapture issue in her decision not nice so the court certainly had the entire record in front of her she was the judge same judge who decided the issue of recapture on summary judgment certainly both parties brief the issue of recapture in the motion for fees and in addition i think that at page ten i'm sorry eleven of her decision she did address although somewhat generally she said it was the patent office the patent examiner himself from supply dr small with the language of the claim and thereby imply that it was so i believe she addressed the issue generally and she certainly had all the facts and all the legal issues briefed when she dealt with this on you know i think conclusion of the case so once again we're hearing an invitation to say that the judge impiously ruled on this question i think she actually ruled on it i think she said that that the patent examiner gave d of the record she goes on to discuss one example of that but perhaps as a fully discuss the other entirely to discuss it but certainly in the record and in in the briefing she had before her the citations to the  and of the few district court cases that had come out since then as well you could even appeal the validity determination we do not know and we should we make anything of that and in terms of this assessment it had nothing to do with this is just me your honor that was a decision made by the client not to continue the litigation any further but it would seem to indicate that there was a firm belief in the strength that the position had nothing to do with a firm belief in the strength of those positions run or i think i think our briefs here on appeal shows that we think she dr small did have a fair basis and t o ultimately of prevailed at the district court despite the fact that the judge took all found otherwise that that's all practice and her practice she did your honor in fact she  did experiment on one patient and that's when she actually came up with the invention there was a patient would come into the n y u clinic and had a loose dental implant and she actually created  some slot in the existing implant in order not to have to pull out the entire implant so that's where she came up with the idea for the slot the very beginnings of the idea and of course judge but all know that there's no evidence that this case was brought in bad faith and there's no evidence that there was any litigation misconduct by dr small and in fact in plain direct hasn't alleged any  here there's no allegation that there's there was no evidence that she's a patent troll and in fact this idea of nuisance value settlements is the first time i've heard of it there's no evidence in the record that dr small was seeking and you know the fact that dr small sued within days of her patent issuing i think it shows that dr small didn't sit on her rights so i think that  honour's it's really more of a question of looking at the case as a whole isn't unusual and it is unusual you don't often find a case where it isn't a matter usual case is entitled to attorneys i believe that's what the supreme court said no they did not he said if it's uncommon i believe is was the language that was used in the case that's it says exceptional pardon if that she says exceptional exception why don't we we did you really want to be talking about it today we're talking about it in the light of looking at extending that prosecution you mean those are all very very compact safe questions and we can determine on the record whether there's an acquittal on court's memorandum an order which affirmed which held that the patents were invalid and then and only taking statements from the judge to come to my conclusions which is she found all kinds of special unusual things happening in this case she commented about the fact it was three years before dr small came up with it with the proper application for reassurance and therefore decided that it was  there was no way of finding out about it except by deposition of dr small and the public use came up and that was part of the one motion for summary judgment so that even if you look at judge bach was higher standards we believe  this case makes not on just by reading her opinion alone if you read her memorandum in order it cries out for a special case an exceptional case she just didn't use the language