wrong it can be back larry and we it can be modified by this court or can be explained and the explanation is very simple in litigation as in war there can be winners and there can be losers clearly there can also be lose lose outcomes we like to talk about in mediation of cases before they get to hear your quarter before they get to the district court that's the only way to get to a win win outcome well there are win win outcomes that do  said look we think that we should have special circuit law on on cos at that time the regional circuits were in disarray the regional circuits particularly in light of recent supreme court cases are in complete uniformity that the district judge has total discretion what happened here is the district court was constrained are you saying that we should overturn because it interpretation of all fifty four is wrong or we should overturn sound because we shouldn't be applying federal circuit law so that particular procedural question i think it's actually both your honor in truth your original underlying basis of decision from some twenty years earlier in one nine hundred ninety six that seemed to say well we have to go one way or the other should we go with the regional circuits or should we going to different direction and ultimately decided although it sort of indicated it could go either way and that it was going to stablish a special rule for patent cases what we now see in the supreme court is these special rules for patent cases not the way the supreme court jurisprudence is looking at things again now you are bound to follow up to the question is the reasoning in octane in the premise of octane that the district judges are to be given wide discretion in these areas they they clearly have been given the beginning of wide discretion attorneys fees wide discretion on damages they should have that same discretion and possibly shouldn't try to figure out well i have to go through this methodology where first the federal circuit says it's a federal circuit decision whether who is and there must be only one prevailing party then you go to regional circuit law which in the ninth circuit says one to decide that someone is a prevailing party you should award them costs and then you drill down to the bill cost to figure out what goes one way and what those another that gating decision with the ninth circuit rules makes sense when the ninth circuit rule exists that the judge can decide there's no prevailing party that same invalid with an account or credit for infringement i can see that there would be an interesting question raised but it is really hard to overcome the reasoning of this trial remember they didn't have to do that they didn't have to carry out the proceedings to say and we actually want a new trial on invalidity not why this patent is still alive this patent fact their product line this patent does happen impact on other iphone products so it's not your own makes a good point both of you do that well there could be different procedural contexts that perhaps sharpen this issue but in this case the issue was just so sharp because apple pursued the implicitly defense through every mechanism possible the only thing it didn't do nor did our client is take an appeal on the ultimate jury verdict here they accepted the situation where the judge said i have complete discretion to decide if there's no prevailing party in this case perhaps it's your honor judge newman's this and that best explains when you say plaintiff as well as the defendant have lost on significant issues courts have generally awarded no cost that that's a decision that could have been made if shum were not in the way it was in the way of making that decision it's pretty clear from the district court's opinion that he saw that as constraining him in what he could do we think that constraint makes no sense under current supreme court  no sense under regional circuit law and no sense as a matter of policy when district judges are in the best position decide if it's lose lose there are cases that are lose lose both parties lost on as you see sometimes they do they they sort of shoehorn around the reality is we have a quality of regional circuit law that goes in one direction and we have this court that's going in another in the face of supreme court authority that would suggest find a case in other circuits that seem to have this gaping approach at the federal circuit has decided to to put in the way of discretion it's really a simple as that i don't have much more to argue i know there's arguments that were made that somehow we were supposed to make all the same arguments that we've been appealed to the district judge it's pretty clear the district judge was going to follow show the district judge was very careful to explain what it's reasoning was the district judge just as perhaps this panel was bound but at some point somewhere somehow this is going to get reviewed and we believe the appropriate outcome is district court discretion we reinstated fully if there are no the questions  unfortunately had twenty actual stress there's no question about their cell records are dating and exist and we believe there is your honor what do you mean you believe well i don't have the data in front of me because i'm not the corporate lawyers i'm just here as counsel on this appeal but i think we could supplement to provide that data your honor we don't think that g b t's financial distress somehow create some sort of abandonment argument or somehow that it doesn't have rights to pursue the searching we've done we didn't see that issue and i can't prove the negative that that issue hasn't been addressed and resolved but in the cases of we're aware of it we haven't seen that much about other district court decision so the only this record decision various claims against the defendant one of the planets prevailed was essentially not only for a thousand dollar judgment and then submit it to us in addition to the defendants in its own costs and in that case the defendant patent infringement claim that's it like this clique case it does make sense that it's a federal circuit issue that this court is you know equipped to provide uniformity of the patent specific sit in of to prevail because as  the facts of this case are apples red three point it out on the facts of this case to be went out of its way below right to make clear it's not arguing it's prevailing party or even partially prevailing but what i want to point out in addition to that with the argument g b t was was raising that essentially everyone was constrained below in the strong issue never came up in the joint appendix and that same hearing where the parties discussed of the the interpretation of law you want me to apply here so first that's about discretion so as to be ts i have within my discretion under the federal rule have the authority or the discretion to consider the relative success or lack of success of each party correct and continued even though the rule clearly requires me to figure out which side prevailed because there can be only one prevailing party under the rule g b t response right those are two different analyses to undertake that's correct your honor ok and so this issue couldn't have been more squarely re the court said and this is on page eleven eighty seven of the joint appendix the rule requires me to figure out one prevailing parties and there the octane fitness issue to twenty fourteen again that's a wave if they wanted to raise that low by the twenty fifteen hearing blow that should have been raised eighteen months before right so that's newman there could be hypothetical cases so there's some case itself as one example right where you had a much more complicated scenario many different claims and counter and surveiling kind of a mixed bag of both sides and then given your honour's assent in that case waves arguments on appeal that are based on that change in law and as i said octane was decided eighteen months before and david he didn't raise any arguments regarding a political body wanting before the court right trip i think it was pretty clear that the district court was going to follow federal circuit law and was not going to on his own say octane or halo or other cases or such we decided it was say that the judge twice that you're not arguing that you're a prevailing party or even a partial for being very and to say that the giants that yeah there's only can be one how how can we say that you preserve this argument that she sho reconsidered and that there should be more than one prevailing party allowed for europe or availing pardons because we retain the argument as we state the judge that there can be no prevailing park that it can be lose lose it's not a situation where it's they won everything we won something they won we won nothing we change the point about discretion your honor you're correct that we didn't raise the policy arguments that we believe here are controlling what happens which nor do we say well we think that affords an exception that perhaps now could be found it says district judges always retain the ability to say there's no prevailing party no one fairly everyone lost that's our view here and we'd like to get your arms if you've allowed them to rule twenty eight citations to the other cases in the regional circuits that we think is supported and we will get the support