in which the court is being asked to dissect these unsuccessful claim construction positions or its unsuccessful infringement assertions and make a determination about the reasonable ness of those positions the exceptional thing in this case is that that he offered no positions for this court to dissect level up by this motion for summary judgment immediately with its answer based on publicly observable facts about the level of mobile payment system here but when we heard the appeal that it wasn't  frivolous case on the merits there was a suggestion that the phone was a point of sale terminal based on the addition of the tip and restaurant transactions construction of the term transaction terminal they didn't dispute that offer any additional construction they didn't ask for any discovery they didn't order it was clear from the record at that point that the cell phone was used as a tip and court looked at and on summary judgment determined that no reasonable juror could ever find infringement that level up in french mr parents complained and that happened in summary judgment now this appeal this appeal is from the decision on attorney's fees and the decision returning space after the court had already said i don't quite understand what difference it makes that it was decided on summary judgment i mean there are all kinds of cases where there's an undisputed issue of fact and the judge can look at it and determine as a matter of law side wins or another the fact that that's done relatively early on and on undisputed facts doesn't mean that the losing side position is so frivolous that attorney fees are warranted well your honor i don't think that the district facts and as a matter of law the district court decides no infringement then he can hear she can grant summary judgment but does that mean that per se on a reasonable there may be some some window for discretion in the district court to the term in that dispute of material fact but that doesn't mean that even the factual part of it is frivolous i just made that may be true but what i'm focusing on here is the determination at the time he filed as to whether reasonable patente would see merit in that claim and with the disputed there is no plane construction that he was operating under it's not that he was he was saying this is how i interpreted the claim i think the phone can be part of the transaction terminal and that that position gets rejected by the court in the quarter summary judgment that's not at all what happened here the construction was agreed upon the facts agreed upon he was just hoping to hold on and see if he could survive and it was summary judgment and that this litigation go every want to get into that if we want to get into dissect the reasonable this is the position that it's completely unreasonable to say that the consumers phone could be part  terminal he's made this argument that well we thought the phone a phone to be part of the transaction and that's really a straw man that is added using the phone so the first argument i made was that the phone itself could be part of the transaction so you know that's a strawman that everybody agrees was to be part of the transaction turmel when the ship part of the trans financial transaction is entered into the phone so as a base everyone agrees that a up transaction terminal could be a tablet or a phone or any type of device that  the question is not whether it's any type of device where the consumers device could be part of the merchant transaction terminal and the undisputed construction of transactions from on this case is a device that communicates over a secure financial network such as the master card or visa clearance networks and communicates transaction information for authorization even if you were to take this this argument that the phone that make up of the transaction terminal is somehow transcend over time that the consumer the consumer device can be part of the transaction terminal  this is not turn it into communicating over the public internet as a way to reach people that don't have cell phones or are connected devices in the way we do that is by communicating over the secure financial networks to these terminals like a t m terminals or reach out terminals that are wired in the firewall to the s network even if the phone is considered part of the transaction channel because you're scanning a q r code it's never part of any device that's communicating over that secure financial transaction that would that would inherently destroy the security of those terminals  and and that's what the that's what happened seeking to avoid level ups only sending messages over the public internet to that phone and when the phone is receiving messages over the public internet there's no connection between that user's phone and the  messages ever transmitted between the phone and the point of sale terminal in fact the phone can be in everything when you enter the room on it is transmitted and communicated so that part of the transaction there's two points in time at that if you're present my credit card to a waiter at a restaurant and he takes it and scans it scans my credit card token into the terminal it comes back and ask me how much i want to add for tech and i said twenty percent i signed the receipt i get it back to him and he manual answers twenty percent into the terminal and then that goes up to the financial transaction network in no way would anyone ever suggest that that makes my credit card part of the merchant transaction terminal the and the same is true here even if you were to say that that does at that point in time the transaction makes the phone part of the transaction terminal device that step one step two of the client is receiving the message at that same transaction terminal and when the message is received it's not received at the at the point sales received only by the user's phone and that's over the public internet which is completely entirely separate from the point to sell at that point and there's never any communication so that the take away here is that even if that were true that message received at the phone is not received at the same transaction terminal device as the transactions performed that's an express requirement to claim it has to be the same device so if you want to say the phone is part of the transact terminal for step one it's certainly not part of transaction terminal for step two and then just if you read the patent in the background there's just no basis for searching that level up system here has anything to do with mr behrens method of delivering messages over financial a statement that the level up that functions reasonably similar to that to the abstract in the specification that's wrong as a legal matter as you know we're not here the courts not here to compare the product to the specification the court wasn't relying on any claim by claim analysis by the  time i just wanted to see just one last thing which is the supreme court standard just take me back to high levels from court standard is whether this case stands out from the others with respect to its merit and we look at the others and i'm not aware of any case in which some reject him on infringement  out against the others that these are saying well if i make a pass to schedule a conference or if i get to a claim construction hearing i did better in the pantry in that case and that case was found to be not exception i think that if the court affirms this case in affirms the reasoning and the flawed reasoning the five factual according feeds it's a little ironic listening to my brother's argument because octane fitness i suggest stands for the proposition that the district court didn't have enough discretion supreme court intended on octane fitness and on the facts of this case in any event it's not justified as your honor noted the district court itself refer the level of a patient is no different from a credit card you hold it up it puts the number in and that's not quite how it works as the district court noted in saying that there could be good t the my client and for that matter myself were quite disappointed when the district court said that using a cell phone in this fashion is not a transaction  it appeared to us that what level up was reached telling the public that its application would do ran into the various claims that were in the past as i say the  disagreed that the cell phone was being used as a transaction terminal and unfortunately this happens sometimes you i'd like to think that i win more cases than the other side does but you do lose cases even the district in his summary judgment decision so the cell phone could in theory be a transaction terminal but on the basis of what he saw before him in summary judgment he decided that it was not a transaction  e again as i read the octane fitness case there needs to be a finding of abuse of the litigation or that it was a case that didn't have any  was certainly no litigation abuse the district court judge complimented both parties on getting the case to him in an efficient fashion without running up the costs of their clients and in terms counsel were pretty good indication mr barron was wasting the time of the district court by filing this as for other arguments are rests on what's in the brief and less absolutely no record evidence on which the district court could have relied either a summary judgment or an excuse motion to find that that provided an objective basis second as the subject of factors mr baird mentioned his diligent inference in investigation we offered evidence that the affidavit that he submitted from his past prosecution counsel mr inglis and was fabricated it was actually false he said that he had done six months of use of the level of service prior to filing a complaint from our records we showed that he hadn't used that service for over a year and in response that in submit a declaration for mr anderson they identified another attorney at a different law firm who actually did that investigation all of that evidence is ignored by the district court and its motion denying their fees i should also point out the district court denied our motion for discovery on the subjective factors evidence and in terms of litigation if you said say that there was a litigation abuse in this case there could have been the case didn't last long enough at literally ended immediately after the pleadings there was no opportunity for vexatious or frivolous litigation that's not part of our solution here certainly doesn't have to be present