ok good morning and may please the court i would like to convince you of two points today first if there was ever a case that should be found exceptionable this is it from the lack of a investigation to smart metrics and reasonable arguments regarding the local access number of the taishan claims second not only was it an abuse of discretion not to find this an exceptional case but the district court made several clear errors of law in its ruling unfairly faulting master card for not bringing a dispositive motion early in the case and wrongly relying upon the mistaken proposition that a patent team may continue litigating even after receiving a determent of claim construction in opposite technologies versus busy oh this court indicated that were a patent team no longer has an went and the reasoning the judge felt her gave in that case was that without least one party filing a motion for summary judgment there isn't a sufficient record for the losing party the patent teammate tak it was it was the jane case even after the term of clay construction the parties may enter it was stipulated judgment that makes plain the basis for an infringement to terminate master card what should have happened here after judge fitzgerald in this case issued his claim construction regarding local access number the patentee smart metric no longer had an object of lee reasonable assertion that there was no r no there was no non frivolous argument that could be made on some egypt with respect to summary judgment does the district court conclude that just there or rely on panetta because they think i can get away with it and to connect them with a judge the district court doesn't say that what the district court says is that it was not implausible on its face for its smart metric to have continued but not implausible on its face is different from the object of reasonableness which is the factor that the supreme court considered in the octane fitness case plausible on its face is the twamley all standard for pleadings objective reasonable  mean the district court concluded that they didn't have they did have objective lead reasonable arguments at the claim construction piece of it that you're seeking attorneys fees for everything you're not saying we should get attorneys fees for just this piece of time  circumstances approach one piece of the totalitarians the tally of the circumstances was the failure to stop the infringement case after claim construction but there's other reasons as well we don't think the cla construction that was offered by smart metric on local access number was objective we reasonable from the get go and the reason why is because it read out the limitation of their being in the locality to it the district brought a motion asserting these deficiencies at that stage of the litigation have before that it says the court did not find that smart metrics infringement has lacked any legal or factual basis and moreover defendants every problem motion yeah i mean it's not like the fact  motion from the play itself it would have been futile but in the high mark case the supreme court said the district court with necessarily abuse its discretion if the based its ruling on a rony as few of the law and master card has cited least three erroneous views of the law that are in this or faulting master card for not following the early summary judgment motion rely on connect and appearing to judge the post klapisch structure in place based upon the not implausible on its face standard and this is on top of all the other evidence the master card aside for why this case in our view is indisputable and an exceptional case and that goes to the lack of pre filing investigate what would we not have to do if that asked for your if we accept even the arguments you made it we would require a vacate and mean the end right because we don't know i mean you have to acknowledge that you've at j twenty five twenty four j k twenty five twenty four ok this just one page ok and your point goes my point is that the court refers to the motion the motion the market is talking about a motion filed time in the fall of thirteen twenty thirteen right and at the end of this order he says in the last defendants never brought a motion asserting these deficiencies at that stage of the litigation you heard what he had to say and you've read as brief about like that it's that criticism is not proper let's say you know here's the answer in our briefing we said it in this is the trucker on the twenty five motion my opponent said that no reasonable attorney representing the plaintiff in this case could have far that master card controlled to elements of claim one and i said if that was true at that outset of the case if that was troop as master part asserted to be then master card could have and perhaps even should have filed a motion walk right out of the case that point and that's my response to their assertion that nobody in his right mind would think that they control the elements of the of the clean from the beginning of the case that's all they aren't i said the reluctant trial courts reliance upon it was soley my argument that if the other side right in saying that nobody reasonable person could think they had control master product control of the claimed elements at the very beginning of the case then why didn't they file a motion to get it that's all i said and the judge said that makes sense to me that's what he said he didn't say they'd lose for that reason he said the argument that you take the response to their puneet makes sense to me that's what he said adverse claim construction whether or not the district court concluded the eve should have one of or the ok in pursuing a case after some litigation after some before summary judgment because you needed to proceed to summary judgment by doing echoes language in many of the other district court cases that i cite my very there are many many cases that they cite from the district court that follow the octane case and this kind of language appears in many of those cases if you just look at my brief and i had one br look for he was supposed to consider the totality of the circumstances and on page four of his opinion as for he he loses all the assertions my opponent's made about which basically covers every single thing i did the case and they say that everything opinion that self if you look at the opinion there's a heading that's that says granting attorneys fees for a motion for summary judgment following an adverse claim construction you tell me where in the opinion i  to start well so this is getting be under discussion and there's a whole that there's a whole section titled granting attorney's fees for a motion for s judgment following and that burst quite a destruction would unfairly preclude parties from appealing claim construction issues and then there's a whole discussion about basically as to why judge fels or believe that you needed to have a motion for summary judgment in order to have for a patentee to be able to appeal that if a patentee gave up the case after determined of claim construction that there wouldn't be a record for appeal court of appeals to provide that review and in fact in some pretty octane cases which were cited in our briefs the federal circuit has denied attorneys fees and found no exceptional case where a patent team did exactly that stipulated to no was argument regarding stanton processing the record was that standard processing was centralized in st louis that's what was done and smart metrics own expert in his deposition could not say how the standard processing it all depends on location and of the crossing is what master card does when they can't reach the card holders bank it reroutes the transaction to standard processing in order to authorize the transaction but that's standard processing is done in st louis regardless of whether the card holders in seattle and san diego made it in miami or in maine and for that reason the arguments for frivolous judge fitzgerald i thinks that is a set too high a part here and that shown by the errors that we've pointed out it's also shown by the fact that the very end of the opinion says that a lot about what's going on here relates to