permitted conduct must be found in order to support at two eighty five feet award this is legal or in addition the district court failed to evaluate the totality of the circumstances and it doing so select that million dollars but in relying on less than the totality of the circumstances and on relying on an iranian understanding of the law the court erred and abused her discretion in a riving of this fear ward for those three races you're saying a very experienced judge probably having sat for thirty years in the law your honor i would say it differently which is the law was evolving of the time we saw him not team fitness what was in octane fitness directs us back to that using the language of equity using the language of bad faith she failed to consider that she should consider i'm sorry what did she failed to consider that she should have considered there's a number of important things your honor the first one is she spends a great deal of the district court spends a great deal of time evaluating what she called the shifting infringement positions in looking at that she failed to consider that she herself actually encouraged the parties to engage in that shifting of infringement conditions or infringement infringement contentions and we see that in the record in particularly in this september twenty ninth two thousand and fourteen transcript which is part of the record and in that she very clearly says that she is adopting a new she adopted a new procedure for our case that allowed the parties to conduct claim construction before the final infringement contentions were set and that language i think is very forgot that we were according to her her guinea pig and that was again the what she didn't consider the totality of the circumstances that she didn't consider was that she herself not only permitted the conduct but encouraged it and that's it page twenty eight of the of the september twenty ninth transcript when she says she interrupts mr jones who had complained about a shift in infringement contentions and she said i actually thought the purpose of having claim construction before expert discovery was so that the experts could address and formulate their opinions consistently to the extent they could with my claim construction so i just want to make sure before you start your argument says mr jones that you understand this some shifting in position i thought would be expected and that's what we have here is the confluence of two things judges involvement and the infringement process allowed us to make those changes t change in her structure of her patent cases so that claim construction was done very early and in fact she encouraged us to engage in the very behavior that then some months later she criticized in her feet award if you consider the totality of the circumstances that was that this was not only not bad conduct but was permitted and encouraged conduct she could not have found that that conduct was sufficient to support a to a five for you were about  those calls quietly conda and those caused by other things why isn't what she did perfectly appropriate i believe because it appears to have been arbitrarily selected number i agree that it is approximately a third of the fees that were requested but there's no explanation for how that feel was arrived at and because of its the fact that it is such a round number it does appear to have an arbitrary basis rather than the basis of the third circuit has required which is the lodestar action which is not only the reasonableness of the hourly rate which he did address but also the reasonableness of the time spent and that i agree your honor is important that there be a tie between the reported misconduct which he didn't find by the way but the purported misconduct and the fear ward and that isn't here and so that is a fundamental error that undermines the fia ward but if we look at the other conduct that you pointed to we have similar issues for example the the idea of a representative product the idea of representative product really goes back to our fulfilling our responsibility to try to streamline would be a shame what we had was a defendant that a many dozens of products that it had acquired that practice our client's patent we worked with the court and with mr jones and his his his client in order to try to arrive at a solution to that and that was the representative product of croce and it was a dialogue a negotiation between the three point the three groups there the court the defendant and the plaintiff where we arrived at a negotiated resolution and we submit that that should not of the relationship between section seventy and section two eighty five and in that the the court notes that the provision then provision seventy which they then the supreme court acknowledges is flows through to the current to eighty five the provision unable them to address quote unfairness or bad faith in the conduct of the losing party or some other equitable consideration of similar force which made the case so unusual as to warrant the shifting and there's a very important case that came systems case from last year which does go through the senate report language that it has been adopted through octane fitnesses opinion as well as through checkpoints and it is  what the what the congress intended to do with section two hundred five that is through section seventy focuses on things that uses very important language for example the senate report reads the exercise discretion with water rising to the level i believe that you need to have you need to have some form of misconduct there it cannot be permitted conduct that underlies these these equity principles otherwise we'd be punishing coverage or anything like that i believe that there are certain there are certain prohibitions against abuse of litigation tactics whether rises of things like rule eleven or section one hundred twenty seven certainly not in saying that through tactics can but that would be i'm trying to distinguish between abuse of litigation which is a form of misconduct and the sort of permitted conduct that we had in this case as to what you mean by primitive she certainly didn't she absolutely and this is at the end of fact discovery after playing construction at the end of expert just government she said she said i actually thought the purpose of having plank construction before expert discovery was so that the experts could address and formulate their opinions consistently to the extent they could with my claim construction or homes that say your conduct is from this for them because she was encouraging the parties to take into account her claim construction and then modify their infringement intentions to reflect those those those that different or change claim constructions that she entered and in fact that's what she did in this case she did adopt some claim constructions that were not can that they were not proposed by either party and all that was done and all of the record supports is that we made changes to reflect the her claim construction and she at the end of the case at the very end of the case in september said i expected you two over eighty products infringing sixty seven claims in may of two thousand and thirteen and this is all war the year before the conference of mr richardson was just referring to in may have twenty thirty two they served their initial infringement contentions now we have sixty five products and thirty six claims so we've gone from two to eighteen to sixty five we asked them to reduce these numbers because of the significant discovery burden that this was going to have posed and there's plenty of evidence in the record as to what that burden was in january of two thousand and fourteen we finally had a court conference in which the court ordered the plaintiff to reduce the number of asserted accused products to between six and eight into rank and instead what they did was to name seven products but say that these seven were representative of forty seven others we did in fact communicate with both counsel in the court about our concerns as to this representative approach it required that every time they said product a is representative of product b our people had to go take a look at the technology involved and decide whether those two things really were the same and if you look at  second that disappeared in the third effect there were only two products of the seven that retained that maintain their status all the way through we changed to get in february they changed again in may they serve final infringement contentious in july and this was a month after the martin hearing and after the martin decision came down and the problem here was that they added six new claims there's never been asserted before there's never been the subject of discovery had never been charted and we complained about that in the court of july twenty first telephone conference said no you can't do that they withdrew the six they put four back in and then they promised to have their expert sorted all well  technical documents that had to be produced two hundred ninety four thousand emails that it had to be produced because of what they required in terms of search terms so all of this burden all of this work had taken place over the year and a half before the september conference and keep in mind on are all set at the september twenty boobies september twenty fourth two thousand and fourteen conference when she was explaining her thinking in terms of for the first time having the expert reports come after mark that was the change that she did and she she did say we were the first case of which she had tried that i don't i'm actually not sure she thought it worked out very well and part of the problem was all these changes and shifts that happened before that we do mark when we have more changes and shifts and it wasn't just making minor changes around the edges to take into account the market when the decision it was wholesale changes to both the claims and the q s product that was only one of the things that judge robinson found to be the basis for fees and let me just address the standard issue by my just for a second we've used the term litigation misconduct that is really a shorthand term what the court said in octane fitness the supreme court said that one of the bases for fees is under reasonable manner in which the case was argued that's  in connection with the motion to strike unnecessary and overruled motion to strike that was the first thing out of the box the refusal to reduce the scope of the claims and the accused products these changing shifting infringement theories that she discussed  length in her opinion she found an reasonable manner of conduct during the martin proceeding focusing on these definitions that had been added into the patent filed history eight years after the original specification had an application had been filed admittedly in order to try to say that things that if the words in the seventy five patent which is the parent are the same words nhappy conduct she called it turning the market principles on its head she also found that there was no evidence of appreciate investigation mr joe i said he didn't do it mr barch said he didn't do it the expert didn't do it because he hadn't been retained for almost two years after the case was filed and there was no evidence that anybody did it those were the things that judge robinson focused on in terms of and reasonable manner in which the case was  sorry the amount of mom who it is it is undeniable the judge robinson did not give us a whole lot of guidance as to exactly how she came up with that number however i would direct the court to the fox become green eyeshade accountants the essential goal in shifting fees to either party is to do rough justice not to achieve auditing perfection so trial courts may take into account their overall sense of the suit and may use estimates i calculating and allocating and attorneys time and appellate courts must give substantial deference to these determinations that was what the supreme court said it is there was no obligation in the cases in anything that required judge robinson to sit down as the court said put on the green eyeshade and go through the bills and say i will give you this and i'll give you that i will give you this i will give you that she did rough justice and that the district courts be required to give some reason so  the language that she used in deciding in telling us all why she gave the number she gained it's very clear that her intention was to try to do the rough justice here once i'm going to award jack henry the amount of fees that i think represents what spent more than what it should have had to spend that was what she was trying to do because of all of these changes shifts series scope scope issues because of the under reasonable manner i think this case cost jackanory a million dollars more than it should have and so that's what i'm going to award clearly and plainly within her discretion the thing we talk about let me just touch on checkpoint that was that was discussed in the  other side's opening argument that was a distinguishable case in the court there that this was a case and in which this court found that the district court just plain got the facts wrong and that's the basis on which virtually every in which the federal circuit has reversed feel or has relied the district court just plain got the facts wrong for example and in checkpoint the district court said there was no precision investigation the federal circuit reviewed the record and said well there were two opinions of counsel that they said that the expert in the district court said the expert had evaluated the wrong product the federal circuit pointed out that the product it had evaluated was admitted leads actually the same as the other really i think the best thing to do is to run is to some summarize frequently and to me there's no reason to second guess judge robinson's views here she reviewed the evidence keep in mind that this was a case in which the court had seven conferences with the counsel discovery conferences status conferences motion conferences there were two filed in one emergency motions that the judge took up dealing with these issues she said that she spent more time on this case with us than she spent on virtually any case that she had had over her long  career she applied to write law she looked at the totality of the circumstances she awarded the proportion of the fee that in her judgment represented how much second rate should not have had to spend and there's no abuse of discretion and no reason honor with respect to the arbitrary selection of a million dollars because that's what it was there is simply no analysis that was done in order to to validate whether that was an appropriate amount or an excessively high amount which is what we would believe know that that exact language was used really what we said would you argue for different amount we did not your honor my understanding is that we there was only partially partial time sheets that were provided and it  precluded us from doing that very thing but it's important to note that although the case of the fox cases cited by mr jones does exist the reality is that the adjuster card case which is also fairly re does say that although you're not required to show every bit of your work you're required to show that you did the work and this case it certainly is clear that that work wasn't done with respect to record why didn't the approach adequate to if we had had that opportunity i think that would have been an important safeguard in this circumstance we had briefing that was done in january of two thousand and fifteen the order that she entered on fees did not take place ever it was not signed until march of and sixteen during the passage of that time there was no supplemental briefing there was no oral argument and we had no opportunity to be heard on that issue that certainly is an issue that we would like to be heard on as well as to how much in the way of these to the defendants the where we proposed that there was a certain amount we did say that we believe it should be tied to the single issue on which the defendant said prevail below which was the one a one finding i can counsel will