thank you your honor may please the court tom schmidt on behalf of the retailer defendants kmart an artist and finger fast this case against the retailer defendants was exceptionally weak from the start and only weakened as the case progresse no laws that's true your honor we think that was a clear error of judgment abuse of discretion is deferential to be sure but it's not doesn't mean a case is unreviewable and in fact since time mark this court has reversed district courts exceptional case determinations in opposing party has tonight we just opposed state petition is opposing the state just in the basis for when you turn your honor not not alone we think that the strongest bases are first of all the what we think of the frivolous claim construction position that they adopted and then not giving up the case when it would have been reasonable to do your honors opinion in a long we think is most directly on point there your honor said of course abuse of discretion it is a differential standard but there is a threshold below which you claim was hardly any argument even in support of it i think there was a single sentence in in their opposition to several judgement which just said it was a jury issue that pointing to any any evidence and even on the merits had they developed it more it would have been we just well because it basically one of the key limitations of the patent which was the claim fourteen of the patent which was the manner in which the side rails of the of the slides perform so we think again you know in the mind run of cases it's not going to be appropriate to reverse but there is a threshold below which it isn't reasonable enough that it is appropriate and we think this this case is below the threshold and so maybe i could just talk about my claim fourteen for a moment and that and the claim construction dispute to keep the dispute just to refresh your memory what's the meaning of the word baffle and the question was whether the apple had to be entirely inside the body of the flight of the slide or could be partially external and there's nothing in the claim language that directs you that answers that question we think there is your honor because what the claim garbled that a little bit the idea is it has to interconnect the base in the upper surface so it can't be part of the upper surface and and i would point your honor to the specification so that the patent itself is is that the end of the open languages that apple has to interconnect the base and the upper surface it cannot include that part which itself is labeled the upper surface and it's just not almost every case comes before us as it has a difference of opinion on cl is such a case that the claim language interconnecting the bass in the upper surface of the claim language also requires the battles to perform a specific structural function which is maintaining the inflatable body in which shape and only the internal part of week playing construction position and enough to render the case exceptional now after and after this report's martin ruling of the we continue to oppose summary judgment as we discussed without a viable infringement there in fact its own expert conceded trial and moved to move to dismiss only two weeks before after a lot of expensive preparation it happened the case was actually dismissed one week before trial but after motions eliminated been filed and we think that the factor that weighs in favor of the case being exceptional again one the lanham act side of the case the only i want to say there is just that there were a number of standards percolating in the courts the fields for the lanham act standing at the time this case was filed and we think the fact that that view was claim to standing still so clearly under all three and even under the supreme in which judge she tried to process on the panel reminded us that there are two species really an abuse of discretion one where there's a clear air of law or error of law that's been conceded didn't happen here and the second where there's been a clearly erroneous assessment honor i really want to correct what is a misleading presentation in the reply brief and earlier today about how that came up that you have to understand that the retailer defendants did not move for summary judgment based on this baffles limitation entirely inside they did not raise this issue at all in their summary judgment papers wal mart released it in their claim construction brief so we responded to summary judgment we argued against the seven or eight arguments that the retailers made and we won every single one of those arguments once the court's claim construction came out in july now that wal mart has prevailed on a claim construction position adding this limitation entirely inside quit once but it wasn't perfunctory or baseless it was a five page affidavit by an expert explaining how the drawing was in the patent when the court construe them really matched the walmart product and it was done family products the same products that they're selling so there's no difference and there was a four page argument in the brief not the judge didn't want but there was nothing wrong with raising it and we also have to keep in mind the timing here this all happened within a couple of months so we asserted doctor of grievance against the party that raised this issue we lost the issue and the claim fourteen is over by november seventh in their case december third wal mart is within a couple of months of claim construction or so really a standard way to end i mean this is the rules of the scrap says cost should be awarded bottom line in this case you didn't have to pay any costs doesn't that seem to be contrary to the directive no your honor here's why i absolutely do retailers as the prevailing parties were entitled to costs but they have to make a showing that they incurred costs and paid cos that's that's true for anybody right they did not make that shilling they put in a bill of cost that shows every cost that was there was incurred by manley who's the losing part this is all the appendix i've i've standard the judge supported looked at and said there's no showing here that the retailer to sentence incur costs and pay costs these are managed costs you have to apportion them and the district judge affirmed that and ok and the fallback position is given a program to share costs well that would be fine if they had incurred or paid any costs and made a showing to the district court of that they did not do that had the authority that they cite is situations where insurance company an outside party pays for the defendant's costs of course in that situation the defendant still gets to recover those costs here the losing part of the mandate paid for those costs and they've made no showing that they incur cost so that's the threshold before you get costs yes as a as a as a matter of law as a prevailing party are they entitled to costs yes they are did they make a showing that they've heard costs and paid costs no they did not they put in bills that manly paid their address to ma'am and the bill of cost i was very clear in the district in minnesota it's as if you've got multiple parties on one side winners and losers you have to support you have to make some showing and it also is clear that says right in the bill of cost and this makes sense we can't award costs more than once we only award one set of possible a judge award seven hundred thousand dollars to my client the viva because we won the  judgment against manly and were awarded attorneys fees and costs for man's conduct in the case so that's that's the constitution hasn't been any show and there's no authority anywhere that a defendant who's a winning party can recover cost paid by the losing party if i could turn back to the standard of you i didn't want to lose the point i thought was persuasive so what we have here is there is no showing of you're on the server familiar but that's not appropriate under higher but to take it a step further the court's judgment has to be so it came to speed right or wrong has to be so wrong that's abuse of her discretion if we look at claim fourteen which  really the focus of the argument this was the standard claim construction argument that we see in most patent cases the patent t my client a viva argue that the word baffle should be given  ordinary meaning as a check between the upper surface of the lower surface to keep the product in its wedge shape we argue that based on philips the court's precedent and dictionary definitions wal mart are not these retailers they didn't think of this wal mart said judge what you should do is you should add a limitation to something and you add a limitation it says that baffles got to be entirely inside the inflatable body now the argument is made in this court that our position was objective we base was because their claim language required that to be that baffle to be entirely inside the inflatable body and that's just that's that it just doesn't follow the judge reasoned and the question is do we have an argument that it's not questions about whether you're right or wrong but the judge reason that this side baffled d could not be a baffle because it was partly out externally and the judge said well that doesn't attach the base to the upper surface of the upper surface see well that just doesn't live simply fall that's not correct the baffle d is attached to upper surface the at the side it's supporting the wedge shape by being attached to the side the other problem with councils argument is if north claim fourteen claim fourteen says that you raise the side baffle and the side wall to form a psych rail and the language when we get to the right exactly so you raise the side baffle you raise the sidewalk to make the side rail such that the upper surface comprises a pair of cyberattacks so now this is the upper surface two so our argument which seems to me to be a reasonable ordinary argument is that baffle the whole say can the side baffle connex the summers of a z and this upper surface a and it's doing what it's supposed to in the claim the claim required showing make and then the other argument that was made in the briefing not really addressed here is we're fighting about what the drawings mean and i would just remind the court that if your audience and your colleagues have many times cautioned us to be careful about the drawings they're not meant to be exact precise depictions of space or dimension but we think if we try to put in the papers the drugs actually supported us they think they support them you know and i think that's a fair grounds for argument but the one thing that is clear in the law is a drawing of a single body that is not enough to read in a new imitation into that so that's really that's really pushing for t v and i wanted to address the commentary about claims slides and makes an obvious argument that you combine those two pictures together and you've got obviously this problem that should have been so clearly us that we never should've brought the case in the first place that argument was not made to the district court it was not made on summary judgment it was not made in the feet petition it has never been presented to the district court and in the reply brief the assertion is made that well we didn't have to really say all this in the in the feed petition because the judge knew all this already that's a false statement you need to understand that's not true the judge had never been presented with that evidence and never looked at those drawings  title to go to trial on claims eighteen nineteen we had an interim decision from the patent office that was not favorable but we still have the right to appeal so we had a choice to me and after the summary judgment ruling out playing fourteen we immediately  be reached up to walmart and over the course of a very short time few weeks settled while they are not here today we attempted the same process with these retailers who are represented by the same counsel that represented manly the party and its with sanctions to have a default judgment of over a million dollars for litigation is comped and our counsel of eva's counsel tried to approach the retailers knowing that there is no way that they could ever settle the case would make they've had to go direct to the retailers and that was rebuffed it didn't work and so prevention late after this all happened all of them a few weeks of either drop the case now there's kind of a fundamental inconsistency that runs throughout the entire papers this is supposed to be some terrible thing that we put these retailers through for a month or two three get ready for trial instead of dropping it you know sort of immediately after playing fourteen was dismissed because planes eighteen and nineteen weren't worth as much well if that's the case then why didn't they ever put in any evidence that they had sales that would have been easy to do and why what it would really be spending money to get ready for trial if they had no infringement liability because they had made any sense it doesn't make any sense it's just a would need to drag this case out and make it harder for my client who's sells waterslides manly sells waters it's the retailers are falsely advertising manley's waterslides in their stores because the false advertising is the pictures of the depictions of the products the retailers are falsely advertising manley's waterslides on their websites again depicting their water supply side by side with our ours is that the retailers actions have more power than manage their actions obviously because had a reasonable argument we were a competitor we didn't sell very much because we were being destroyed by their false advertising as the district court itself we've the last argument that they make in the reply brief is well you didn't really have any damages the insurer happens to be a codefendant rather than some other third party so we don't think that the persuasive basis to deny cause i want to briefly address the file history i think perhaps an orthodontist in the eighth circuit said no there's no preventing standing here you cannot sue the yellow book the yellow book is just the medium of the false advertisement is not the perpetrator of the false advertisement and that's exactly true age and we have here the retailers are not the perpetrator of false of the retailers doing anything to put themselves and implicitly with mandatory that we think there is clearly no basis for standing the last thing i just want to say is high mark of course is the differential standard of use discretion but we think is a two way street on the one hand and to this court ought to be deferential but on the other hand it behooves district courts to provide some explanation and some and some reasoning to support their conclusions and we think we think the district court simply never explained why the claim construction position here was not for those never can never explain why it was reasonable to persist as long as as if you did never explain why you could have had a reasonable basis to think it had standing we think because the district courts