heart here only dispute over forty five thousand dollars one of the attorneys fees for the client must for exceed that i'm sorry i mean why are we here a plumber dispute involving forty five thousand dollars when the attorney fees for the appeal must be two or three times that yes the answer that question your honor is that our client feels very strongly that the law was incorrectly applied and that it should be declared the prevailing party it's more about the it's not about the forty five thousand dollars we've already paid the judgment in this case which was well more than that it's about the principle of applying the law correct there's got to be more than that here i mean forty five thousand dollars the here but it doesn't even make any sense that you all haven't been able to resolve this well the main focus of the appeal if there is of course a portion of the appeal where we talk about some of the individual costs that's correct the focus of the appeal is more on the question of who was the prevailing party and whether we should be required to pay costs at all so i do understand your point it is a relatively small amount but it is really for our client really as a matter of princip because it really does feel that after all of the time that was spent in this case over a four year period through two full trials the end result was clear and in other words it's a case about emotion rather than money well if you can put it that way but i would i'd rather use the word principle than than emotion your honor so i would also say that in addition to requesting that the law be applied so that this court would well there was simply a mis application of the law and not necessarily just a mistake or a correction so if we were to have made a motion for reconsideration we would have to show that the judge failed to apply the law correctly or he overlooked the law if it was on an issue of whether there was a mistake in the calculation i agree with your honor we could have done that are you advocating for a rule that every time there are mixed results there is no prevailing party no what we're saying here is in a case where we believe the results were in our favor that this is not this is the type of case where if we are not going to be declared the prevailing party in the first instance which we believe under federal circuit law we should be that focus of the appeal is to get a declaration that we were the prevailing party and therefore we do not have to pay any costs but what we want is that depending on the number of patents or the amount that was recovered i mean is i understand there was only a single product here which was involved which was the no right that's correct although they were different no models that were the subject of the litigation would do that and the infringement of the various models depend on which  infringed well as a matter of fact your honor the in the one patent that we were found ultimately to have infringed was a patent that related to a feature called the shop feature and the question was whether or not that shop feature was which provided information about the books that a consumer maybe purchase the question was whether that shop feature provided that information without accessing a web browser we of course took the position  as to the other pans one of which was found in panel and the other one was found not infringed by those covering different products than the one where infringement was found no i what i'm saying is that you know it's the same product it's the same product but  the if the patent that was found to have been infringed only applied to certain models whereas the other patents applied more broadly to all models that were available at the time so for example one of the patents the patent was found to be invalid was the lending patent the barnes and noble knox all had a feature called lending whereby they use the user could lend the books that they had downloaded to their system to their friends who had in the book as well for a certain period of time that applied to all barnes and noble models but the patent that was found to have been friends only applied to certain models that didn't have a web browser by now by the time the second trial in this case all not models had a web browser so that that patent was to as far as we're concerned the least important patent and the third patent that we were found not going to fill a patent that you found twenty francs to have caused damage right correct well i think you have to the idea is to weigh the respective successes of the party to see which party has substantially prevailed and i think if you do that here we're not saying that that the infringement was of no consequence of course it was of consequence what we're saying is that of the three patents that was the least important from the standpoint of the commercialization of these products and the other patents if we were found to have been friends we would have had to change a very significant feature and the third patent that we were we were not found that infringed was a and that the relief must materially alter the relationship between the parties by modifying one party's behavior in a way that directly benefit the opposing party through one patent even if you don't think it's the most important and how is that standard not met i'm not i'm not here to suggest that that statement is not met what i'm here to say is that barnes and noble to by virtue of the fact that the law of the patent was invalidated also is eligible under that same test which is what i call the i'm here to suggest what i'm here to suggest is that when there are two parties that are both eligible to be the prevailing party then the court must follow the and do the respond way the respect successes which is the case of s s l versus the first issue is who is the prevailing party when both parties are eligible to be the prevailing party and in that case you have to follow the s s l test and weigh the respective successors of the parties and we respectfully submit that if you weigh the respective successes of the parties barnes and noble by far succeeded to a greater extent but when the dreaded better equipped to decide what the ultimate respect i think that for the party are then the trial years of these proceedings well i don't think that's the correct analysis here first of all i don't think the judge did do a proper analysis under the law and by the way on the second issue the question of whether he exercise discretion in this mix judgements case to deny cost notwithstanding the fact that a dragon may have been the technical prevailing party the judge didn't even address that issue in our motion our post trial motion for review that issue he didn't even address and as far as his determination with respect to who was the prevailing party from the standpoint of who prevailed no more greatly if you will i made a mistake because one of the things he said was issue and if you play that test we contend very strongly if you look at all the the results here including not only the number of patents on which the parties prevail but also how the damage award  starting from a twelve million dollars demand down to one point three three million dollars at the first trial when two patterns were found to have been friends down to two hundred sixty six thousand on the second trial for damages i think you can say that if you combine both the damage award and the results on the patents we were the substantial prevailing farty one of the thing i'd like to say here is that one of the things that the district court relied on was the fact that we had reference in his opinion he was referring to barnes and noble's response to address his request for supplemental damages as i mentioned before we had come out with a whole new range of knocks by the time the second trial took place in two thousand sixteen and the dre made a motion for supplemental damages saying all of your new products have the same feature as your old products and therefore they should be folded in to the damage award and we came back and said that district court awarded the cost because these depositions related to issues on which right did not win nothing or something to that effect and why isn't that appropriateness circumstance to address the kind of concerns you individual cost that was at issue and what we're what we're saying is that what he failed to address is the question of whether in a mixed results case like this one it would have been an equitable for either party to have to pay cost discretion by failing to address the mixed results question whatsoever in the total context not in regard to each individual cost that was at issue you can save your  you agree that you would skip elate to correct the judgment to take out the ten thousand no or yes your honor ok we're here because barnes and noble's view of this case is being one that they want to i shouldn't say what they want they have th as painful and expensive as they could do nothing more ok that was coming on from a question i had ok a couple of points that were raised  court and for the hobby decision he agreed he seemed to agree that we met that test that should be the end of the discussion of whether we are properly found or prevailing part of this court has and the notary milling face a situation where a plaintiff could not obtain the money judgment for patent infringement and pointed out that the district court was faced with the fraction of whether a plaintiff would still be a party without having obtained a money judgment determined that it could be given complete success on the patent issues in that case the next case that plaintiff in that case sued a former business partner claiming that he should have been named as a car and better and that he should have received a share  on certain patents the court held that that was not sufficient for prevailing party status and that the court concluded that that did not provide this court and the s s l services versus citrix case there wasn't actually a way the relative result was the relative success of the parties court locked in a case where there had been two patents asserted one was found out in french and one was found invalid and the court the district court did explain its exercise of discretion it went through the history of the case and fairly carefully looked at each item costs about which concerns had been expressed raised as the court has has and the case that there is what looks like might be a mistake in terms of the award relating to the transcript cross  i would only point out that the court the court's comment that it was of awarding fees and can actually with the twenty fourteen trial was response to a comment from a clerk and the district court was responding to a comment about that about to not about not allowing the costs for the twenty four thousand that ten thousand it's very beautiful your honor first of all i take issue with the mr brown statement that barnes and noble is trying to make this as painful as possible we were the parties we were at parties who were super twelve point four million dollars for three counts of pat that case specifically says that the point that was declared the prevailing party could only quote in view of the party's respective successes meaning that this court did do away in of the relative successes of the parties to determine who should be declared the prevailing party even though both parties were eligible to be declared the prevailing party and you also misstated the outcome of that case because he said that there was a finding of invalidity that's not correct what happened that's quite a significant difference from our situation where the ultimate damage award was reduced from millions of dollars to two hundred sixty thousand and there was a finding it invalid so i think if you do the w