spitz technology corp and as you say she's judge provost if you rule for us and reverse on claims construction under another review spitz is not sorry no bell is not the prevailing party under section two hundred and eighty five dollars in the attorney's via word goes away same thing if discretionary standard or you didn't get understood your honor but with respect we think that even though it was considered the district judges award of the attorney's fees for the time period after claim construction was legally erroneous and here's why we think that st of all you've made clear that an adverse claim construction does not necessarily shut down a case and  the time in the district court there's a very high reversal rate for claim construction under no review in this court and if you were to essentially hold patents he is to a penalty of attorney's fees every time they persist after an adverse claim construction it would based on a claim construction that the district court rejected and isn't that latter where you did hear isn't that subject to an exceptional circumstance so your honor we think that st of all we shouldn't have to stipulate to final judgment in order to appeal that i structured group with you but you couldn't you kind of once you get an f there's claim construction you can say we disagree with us we're going to preserve our right to appeal but we're still going to go forward it argued why we were claimed construction correct or not you don't have any good arguments then you should stipulate if you do you can do it but you didn't i'm see you as doing that i see you as saying we get your claim construction we think it's wrong we should win under our claim struction at a certain point when the district court has made its claim construction will keep funding it that's a waste of time and litigation resources that either comes up here or you argue for alternative means for  not your honor it's not your honor st of all because you've made clear that a request for reconsideration of a claim construction that summary judgment is one permissible way to go you don't have to state what you did here here you did a summary judgment motion based on  's right in his five dollars pages of his summary judgment opinion in the merits appendix at pages a forty four dollars to forty eight dollars it's a twenty one dollars page order he spends five pages on doctrine of equivalence in the summary judgment order so your honor even if argued at summary judgment that when the district court said our bottom could be flash the bottom of our tip would be flat we said that shows that we there could be no bell infringement with a flat bottom with cutting edges even if the claims instruction was right now my friend says in her brief that oh well we didn't really argue flat bottom for the eight we argued flat bottom for literal and we did both your honor and this is very important so i want to give you the exact page we argue i'd like to commend your attention to the paragraph in the middle of the st full paragraph in the middle and particularly lines fifteen through seventeen and that's where you'll see and judge hughes i think this is responsive to your question we're taking the part of the claim construction we want where the court said well i look at that tip and in figure one and it looks pointy but i don't find you disclaim they flat are not the bottom and in the sentence as we say s t c did not disclaim a radio extending cutting blade which commences spaced apart from a in his claim construction there was an inconsistency we argued between his saying that are the tip could be flat but the cutting edges had to begin at the exact midpoint and we tried to exploit that ambiguity with his honor we did not succeed but that does not make us  n exceptional case if that were so that every time patente tries to pursue their infringement case after the adverse claim construction by pointing to ambiguities or split babies in the mark men then we'd have a lot more exceptional fees and just your point about discretion your honor octane said discretion but it made very clear that it still has to be an exceptional case out of the mine run of cases and i think you should hesitate before adopting a rule he strong presumption that if you persist after an adverse claim construction in any way that devil's with the claim construction then you're in the exceptional case we're all so judge hughes i might have agreed with you but for the flat out on the claim construction that we won because that's the ambiguity we were trying to tried and failed to do what we were discussing earlier say that pointy tips precludes a flat to judge ruled for us and we then said you know we went on to argue literal infringement here but as i just referred you back to the summary judgment rethink we were always arguing flat bottom do is read the district court's obligations in light of octane and remember octane says yeah discretion but that still has to be exceptional and exceptional means in the totality of the circumstances and i don't think it's unfair in a case where the district  spent five pages in a twenty one dollars page summary judgment order to hold the judge responsible for deciding whether pursuing d o e was a righteous thing to do that doesn't warrant central case finding after an adverse claim construction and you're under one more  even if your honor i don't persuade you on doctrine of equivalence with which we think is enough to override the exceptional case holding by the way i think we're all agreed exceptional case holding turns entirely on prosecuting infringement after claim construction the district court expressly in the fees order at eight hundred and ten dollars says i don't think the other litigation conduct assertions rise to the level of an exceptional case so it lives or dies with this and i think that the district court having spent a quarter of a summary judgment on an incorrect prosecution history a stop all ruling that robbed us of our deep doctrine of equivalence argument at that summary judgment where my friend may say we didn't bring in experts how could we that they moved for summary judgment on infringement before its word discovery had closed we should not be for closed from resuming the process of the argument on remand but we certainly shouldn't have asked where we brought a righteous d o b argument and so we don't create the deterrence problem that your honor describes to choose i don't want to invite people to fight  constructions i think we were trying to explain an ambiguity in the claim construction but certainly panties have a right to pursue d o a after an adverse claim and struck construction that's what we did in the district court in his careful opinions certainly knew which is he spent five pages trying to exception in response to either of the narrowing amendments so we pointed that out we pointed out in the summary judgment briefing that again it was incumbent upon appellants to demonstrate an exception to prosecution histories stoffel and if we look at the summ they mark when order did not and so they in the market order address prosecution history and so in me in opposing our motion for summary judgment where we were saying there is prosecution history of softball appellants attempted to say that they had somehow rebutted it but if if you look at their arguments and what they cite an attempt to show an exception to prosecution history of stop all their citations are two statements that the district court made in his marker in order so it's our view that again given the case law that it's incumbent upon appellants to demonstrate what the reason was for the amendment and that the tangential relation exception should apply they simply didn't do that but there's a difference is there between the theory of awarding  attorneys because your summary judgment motion was completely just pushing back on what the district court had already decided on clinton structure that's one thing is a somewhat different i mean this seems to be based on the fact that you the court's claim construction was was one bases for the four exceptionality but also the fact that they didn't have any sort of basis to rebut prosecution has to stop with the they made no effort to do that so we did we did miss all of and that they were you know deprived of an opportunity to make that presentation if they thought they needed more facts they could have filed a motion under rule five thousand and sixty to ask for more discovery they could have told the district court hey the record is undeveloped here we need to we need to get an expert but but they didn't they made their own motion for summary judgment of infringement and they oppose our motion with attorney argument no particular allies testimony no linking arguments attempting to show that particular feature of the nobel device was equivalent to a particular limitation that was missing literally so even if there is some sort of argument that there was a weak argument  the issue that we raise in our cross appeal is that we believe that there were two limitations that were missing from the accused products one that depended on claim construction which is the commencing at the generally longitudinal axis but the extending radi outwardly limitation was there was no construction of that term no inside construction in the district court applied a plain ordinary meaning that limitation and the absence of that limitation was made clear to a to explain how the cutting edge is a nobels implant could possibly be extending radially outwardly that that is a direction that's aciphex direction which doesn't depend upon how narrow or wide any sort of axis maybe if i have a small circle and i draw a line that extends regularly outwardly that's a direction if i widen it as appellants are doing here the direction doesn't change so so this limitation the direction of the cutting edge is independent of the claim construction dispute we have and it's not met by the nobel act of implements the arguments that we heard below and here with regard to how there could possibly infringement is that because no bells products are symmetrical or because the cutting edges end up a radial distance one end is a radial distance farther out from another but but that's not the construction that the court adopted all of that may be a was very thorough with regard to the commencing at the limit at the access limitation and how that limitation was litigated and appellants consistent disregard for the court's claim construction after markman but but he didn't address at all the extending radially outwardly limitation so his his order is simply silent on the analysis of that limitation so that's what we should be asking is that this court either either here on this appeal or to remain on to the fall right so there was an eight month period of activity before the market hearing and unfortunately during that time there was there were quite a few discovery disputes as reflected in our our fee br there were depositions and things like that so it wasn't an activity you could stand in the district court would have to slice and dice and use to see how much of that was dedicated to the argument you're making here to that piece of the argument that's what you want to do  amended to him so he can slice and dice the costs associated with one argument versus another period well the argument is that this case should never have been brought because there has not been and has never been any evidence that novell infringes the extending radially outwardly limitation that limitation did not depend on claim construction appellants didn't need to get the market rolling to appreciate that they had no case they had no case from the outset so it's our view that the the finding of exceptionality would encompass the entirety of the litigation not just the period after mark thank you thank you honor quickly on the cross on it was quickly on the cross appeal you should reject the cross appeal the district court was well within his discretion to at a minimum cut deny attorney's fees for the period preceding the claim construction the outset of the merits argument everything in this case turns on the claim construction of law and generally longitudinal axis so this is pitney bowes all over again we cite any bows in our brief this is a case in which the extending radially outward claim i construed we we had a perfectly righteous reason to not just to bring our claim nd point your honor on the appeal i just want to focus i want to answer something incorrect that my friend said my friend said that we hadn't argued tangential relationship you think that i had to do a couple of six degrees of separation from the fees for the fact that i showed you how you can do it because we argued flat bottom so your honor we respectfully bill that suggests that you should rule for us on claim construction send the case back to begin the infringement case over again with the correct claim construction and therefore vacate the entire attorney's fee award you certainly shouldn't grant the cross appeal for additional fees at a one million dollars for a case  judgment certainly shouldn't grant the cross appeal but with respect we think even if you deny or claim construction arguments which we respectfully suggest you should not do you should wipe out the atheling dollars and attorney's fees as not an exceptional case given all the distinctions i've made from cases that meet that standard thank you very much for your patience in listening to both arguments you're honest technically and you've got some time reserved on to your argument so if you want to take a minute to respond i could have simply said that the cutting edges do not extend in a longitudinal direction but they didn't do that they chose to specify the direction of the cutting edge and they specified it as being radial and so again we do believe that that's a nearing amendment that that gives rise to prosecution history  but certainly no analysis of how that would apply here and then finally the pitney bowes case that that counsel cited in that case that the term i think it was spots of different sizes was  another term it did depend on it but again as we have explained extending radially outwardly as a direction it doesn't depend on on how fat i mean i make the axis it's it's the direction in which the cutting edge ok thank you i think both