think it is clear if we vacate the judgment in the other case and send it back then you're no longer a prevailing party and the question if he is at least at this stage goes away do you have any di clear an answer as it seems to me warranted if we vary kate the judgment in your favor that is we vacate the judgment that was in your favor so you no longer have a judgment in your favor and the case is not over and it goes for further proceedings you are no longer a prevailing party and therefore you cannot get feeds on the original judgment which you did prevail that's currently ok th shifting legal landscape that we had here and taking into account the discussion that you just heard of the proceeding case isn't it difficult to argue that this is an exceptional case i said i don't see there's questions here that don't they seem to take this case out of the exceptional case category i disagree with and here's why starting out two seventy one b and the pronouncement from this court's on oct twenty twelve opinion occupy that open the door for liability under to somebody one beat once that door was closed by the supreme court that began a point in time where the case became exceptional there was no longer a cause of action under two seventy one b we can debate and argue was to whether there was waiver for the whether there was a properly played claim under two seventy one a but i knew there was a six amended complaint when the original complaint was challenged for lack of sufficient facts pledge to support even two seventy one b under the existing two thousand and twelve opinion of this court counsel for my case amended the complaint we move into i face of stang the case where there are concessions multiple concessions where there is not a claim for direct infringement law changes arguably expanding the scope for actual to seventy one and a infringement arguably i but i believe that under the joint enterprise theory it did not change direction in control it became more specific as to conferring a benefit or perceiving some incentive to perform the method steps that are playing and then you control when we see those particular facts in another case for this case is so slow slow in line to the aristocratic case and its facts that it would have to be a reversal of reversal of that existing precedent and i don't believe that given that course of the question her earlier from dr chen as to whether there was at that point in time of the precedent in  governing law on a subject in which it's hard to dispute i think the proposition that that legal standard was in play we had granted this court had granted on bank review of it it reasonable to press a claim that expressly asks for a change in the law on a topic where that is that is very much in play when you've got mr banks he's in his word pla crieff stating that he has sufficient facts he's invited this court to make a decision based on the facts claims that the there are sufficient facts in the him in the complaint to support direction of control and for the first time there is a claim that there are sufficient facts to support a joint enterprise theory and we strongly dispute that so you can take the facts as it is rather than remanded and go back down and see whether there are additional facts look at the reply brief and there is further evidence of moving positions in argument beyond what the law all has changed to make claims that there was initially no claim for direct infringement then there is a claim for direct infringement then there is a claim for direction and control and now in the reply brief we have a claim for joint enterprise this is a moving target is directly counter to what is permissible under the corporate of charles sixty seven f second to thirty eight line of four circuit case file that prescribes any change in position like we've seen here where the facts are stacked so if you presume after one opportunity to got in the record here but looking at the past self and going back to the differences in the parties here when you have local events sort of in every one of the independent for correct law nevertheless this complaint had to be what was insufficient no because under two seventy one b as the theory the principle theory that you i gather words i gather had an argument that there was no direct infringement theory in the case but you also i assume argued that even if the theory was in the case it was meritless and judgment had to be granted rejecting that so put aside waiver and lots of now assume that there's a direct infringement theory in that case did you argue on that question that you were entitled to judgment on the pleadings even if the  adopted the formulation in the on demand case no at the response in opposition to the motion for some reply there is a good argument that make is makes that the pleadings in this case are relevant so we're moving from an amended complaint with a two seventy one b thirty one to a response in opposition to a motion for judgment on the pleadings opening eight to seventy one any argument for the first time to a statement that the law must change based upon the dicta an on demand to now a position where the facts of the made the complaint are sufficient to finally the argument is that the case law or the pleadings in this case are relevant and that we should just proceed to discovery that flies in the face of  your argument about why this is not exceptional is that it's perfectly reasonable for you to have presented a claim arguing for a change in the shape of that might have been on demand might have been something else and there's nothing unreasonable about that  oxygen we thought was exactly on point we weren't alone in the in advocating that divided infringement should proceed under two seventy one is consistent with  infringement and in actual cases at least in light of the august two thousand and fifteen bach decision there is no record of evidence of inevitable conduct vexatious litigation or any other form of litigation misconduct review looking at the claims the facts don't support the case against the city so these are ticket reseller's there's no inventory control there they have no knowledge of the ampitheater or the movie theater that they are reselling tickets and that is in the complaint is in the record so there's no question there is a reset here of take it it's further removed from the position that i believe fandango i impossible that these kind could be infringed under any theory thank you very much