right the next case for argument is two zero one eight dash one nine two two it's an international versus you know class technology is given the argument and on him the last argument and the and that it's pretty clear that absent an error on the part of your opposing counsel do agree with you like a problem and they could have won and these only shifted to the winner right and they did that i mean i take it the point is i'm at least based on the argument we just finished there is a chance that they will actually win the point there was a trance respectable chance that they might have won the infringement issue at trial had it been presented somewhat differently and if the only aspect of their case that might be viewed as extremely weak is some portion of their damages presentation they might have walked away with an injunction or very small damages but i think it's an abuse of discretion for the district court in that circumstance to say this is not an exceptional case abuse of discretion is a is a difficult standard to overcome but it's not without limit in this case the court stated that this was a stand out situation he had never seen anything like this case even went so far as to say he would be fired for the disproportional litigation style or trial of  he and in his opinion on this issue and jane all he didn't do remain very silent about that issue he didn't recognize the argument that we had made and that silence you mean he didn't formally thinking do i occasionally say something at oral argument that perhaps i don't put in an opinion because i'm exploring something or maybe i have a second thought about it and that's not really the basis of my decision that that even if even assuming everything else you're saying is right yes of course the court would have great latitude what it says during the trial and especially not during the actual trial where the jury  situation but what is it you think is so extraordinary the fact that they had a small potential recovery and they were spending a lot of money in attorneys fees to litigate and so the cost of litigation exceeded by maybe even a lot at what they hope to recover an actual monetary damages is that what you think makes this case so extraordinary yes once the case became what we've identified it is really an empty competitive  case this court has found that two of the five maybe have stressed for a deterrent purpose and in this case where the balance the boundaries are so strange we're talking about a few hundred dollars for some of the defendants we're talking about seen apple samsung go to war over smartphones and sustain litigation longer than i could have ever imagined annual would have the patience for be willing to pay for but because they're such fierce competitors in the market they have to establish their  you don't think that that's a basis for a patentee you didn't ever offer as any form of settlement that you would stop using the technology did you did you offer to give them an injunction for example that not you you are there fears this competitor that you two have the largest market share you're there fierce competitor i assure you apple doesn't license amazon and vice versa except as an incident to litigation ultimately that's my understanding but you know fiercest competitors don't seek an injunction against its fiercest competitor what if there were no damages at stake they don't have a right to seek an injunction to prevent their fiercest competitor from adopting their technology they do so once the images are at stake no everyone comes into this knowing there's no money at stake you haven't even launched a product that you may be advertising you're about to launch that would be infringing they don't have a right to spend say five million dollars in attorneys fees to prevent you from watching that product so that you don't steal part of their market share if it's reasonable attorney's fees simply because they pursued a smaller amount of damages and an injunction and spent a lot of money in attorneys fees to seek that which you think was not worth it and you're saying that was an abuse of discretion that sort of cost benefit analysis is not something i'm going to do for the first time on appeal for sure i would just note a couple of facts the u s court of sugar one of those is that a ten is approximately one hundred times the competitive behavior but you could have offered to stop using a tax that would have taken the injunction off the table but you didn't ever as any part of the settlement agreement my understanding make that offer the you would stop using the patented technology and addition to paying them the damages that they were rightfully out part of the settlement discussion actually did include does reasonable design around and it turned a given a recipe for design arounds to one of the other o e m manufacturers startrek it had included within the license agreement the exact methodology by which it used fridge or could continue to sell products in the similar vein without infringing on the technology is a part of that settlement and that certainly would have been the case here as sorry i wasn't sure i heard you did you say yes we did offer yes you know class did offer to cease using the claim technology and instead replace that with design couldn't become going to greenland is whether or not this design around still in french and that is one of the issues that broke down settlement of course that's not part of this record but that is the case but i guess what i'm thinking of is sort of bigger picture policy type stuff what you're asking us for is to find there was an abuse of discretion by a district court to refuse to award attorneys fees in a scenario where there was a smaller damage award plus an injunction at stake and the attorneys  were really costing everyone a lot of money and you're saying not just that they should have in that case a word you feel used but that it was an abuse of discretion for him not to and so i'm just imagining a million sets of  scenarios where it wouldn't even just not be an abuse of discretion where i would think it be played out proper not to do it i don't know all the facts all i know is what you presented in the briefs and what was at stake but in abuse of discretion is a very high standard what about the need for deterrence i mean if you're a patent holder and people are freely infringing your patents i mean i do know that it is not uncommon for a patent holder to seek to obtain a judgment against one of them to send a deterrent message to the the competitive industry that either take a license or i'm going to fight you till the bitter end to make sure that you abide by my protective rights i mean it couldn't that be a rational not just quote revenge but a rationale to force compliance because you're not the only player in this market as you indicated there are other players in the market and they want to make sure their technology is respected by everybody and they want to send a message to the entire competitive universe that if you don't take rightfully take a license from us then you know we're going to fight till the bitter end to make sure to protect our technology i mean isn't that a legitimate rationale to spend say five million dollars even though maybe only six hundred thousand in damages were at stake because it's got to send a message to the entire industry and to you for with regard to other patents so next time they come knocking you're going to take a license more readily you're not going to fight because you know they will not let you off the hook i mean isn't all of that a basis for rightfully pursuing litigation  me start with the beginning of the comment which is then your question is that this is a totality of the factual circumstances of analysis this is in the weeds what happened was was something extraordinary taking place in this case and so yes in certain circumstances it would be appropriate for a competitor that owns a patent to begin a series of cases against others and it may those special words under octane are said in this type of a contents text this case does stand out from others under the factual circumstances and in this case where the district court who we very i would say it's fairly common that when when you file a complaint you don't have source code because it's not confidential obviously so you make your own you have to have a reason look at the faces from so he normally when you have like a microprocessor case  but if you if you start reading a little bit earlier and see some of the context of where i'm at starting on page eleven that same same the pending page but just kind of on that page on the transcript take eleven line thirteen questions and mr peters currently has exist yes and the court says on a six hundred fifty thousand dollar royalty case do you think that's appropriate do you think that a fair use of the citizen's time and i'm going to kind of drop down later to the portion science and then he won fifteen twelve he started talking about i do i do think and i keep asking people ask you about it we're asking a lot of the citizens we're asking a lot of streamline the case so they don't waste too much of the jury's time don't ask hundreds of questions his comments are really directed at both parties and i think if you look at and there's another example like if you look at  competitors normally you can get lost profits if you can prove your market share the judge didn't think we did a good job of that but i would argue that's not frivolous and reasonable royalty the pardons had a place so the spine so that's a pretty good indication of well this is this i would agree is directed towards a ten and he says his the thrust of the judge's argument is how long is this cross examine you're doing the job in your cross examine the expert how long is it going to go on we don't want to use up the jury because we don't want to use up all the jury's resources he said i've just never seen anything like this or since they are crosses and could cross at all i don't know why we're spending so much time on this for a case of six it's again his concern why are we spending so much time with the case that to limit it damages the state but there's another just to show that his comments are directed towards both sides if you look at ten fifty three i'm sorry ten fifty two this is another portion that you don't class cites in the spring and it's their citing two page seventy three starting at line sixteen and you'll see there's a reference in line seventeen to two twenty nine slides but if you read the context here with the chord is actually doing he's saying to unit classes council why do you need two hundred twenty twenty two hundred twenty nine slides with your technical expert for a case with only six hundred fifty dollars and i'm not trying to criticize  class of the year i'm just saying it's trying my point is that if you the court was saying to both sides to streamline this but here's what here's my problem with your your damages expert his what's the authority for his product  mapping theory well my understanding of what he was saying is that if you look at the products that it's a new theory isn't it now i think i don't think so i don't have a case to cite you but for just those products and then for other products you wouldn't be able to get a lost profits close and that was that wouldn't normally if your direct quite say that he didn't say very well i mean he could have been more clear but my point would be normally competitors can get lost profits if they can show their market share and you know they didn't do the best that's as good a job as they could have but one more comment about these different courts comments to the extent there's any with chase with seventy two pad claims it is over one hundred twenty five products it conducted extensive source code review that extended the deadline multiple times at one point it had to change its expert and that was one of the reasons behind that and then during trial testified the expert testified i didn't need to look at source code at all to make my infringement position but all of that is expenses th bore that's right and then how did that cost you any money when their expert looked at hundreds and thousands of pages of source code when we go back to this quote that was shredded by a thousand or so actually the judge's comments to me in the courtroom he's asking why we have so many jury instructions i think a little it's because we have so many claims issue and i was i said i think i would love i would love to narrow this what i was about to say this case down right before trial we were able to call the claims down to about thirty four claims you know that i'm sorry just to make sure my question is clear did you ask the court to adopt a representative claims yes we did or you did and he declined you know he did but we ha disputes over what those representative products and claims would be actually not claims products either i'm not sure that we asked the court to find representative claims so that is your question i'm not sure about that