fitness the district court did not consider a political federal circuit case law decided after octane such as rothschild connected devices which permits the court to look at factors such as the city's pattern of pervasive litigation in determining an exceptional case that is a situation that does not come up in the lanham act because you can't have a non practicing entity under the statute was applied do we need to reach an abuse of discretion analysis beyond that well the the abuse of discretion and out analysis in this case looks at  in this discussion because i guess the question is whether or not it was error or error it was harmless error and if you look at the district court discussion he clearly was talking about the necessarily trial or subsequent federal circuit cases and even if you were right about those issues i don't see how those have anything to do with the land and that they have to do with the fact that the judge maybe didn't do enough here in terms of discussing the other challenges correct your honor and that's why in our briefing in the subpoena our position is that the t circumstances analysis undertaken by the district court under sunder section two hundred and eighty five dollars notwithstanding his application of the lanham act was still inadequate he did not address a number of the factors that were presented to him he ignored the true grit decision that came out a week before his decision that was presented to him i'm sorry to interrupt you but time is limited and i take your point we've already reached you never passed in your brief as i can tell for a reaming you're speaking exclusively the st now it seems to me even if we were to clue that nick abuse of discretion that your arguments have somehow that to whether or not the district n in which the it's just a court judge would be required to compelled to analyze those other matter that your great fear well if if if this court is not going to make a finding on exceptionality then the man if if we would i would argue that implicit in our request for versal is a request that if you don't want to make the decision you give it back to the district court to do so in the same manner it did not consider the true grit case which was decided a week before on the same pattern claim where the district court in the central district california found that this was an exceptional case based on the filing history the nuisance licensing letters none of these were considered the district court did not consider that covenant not to sue that was brought to its attention where our client shift via fed ex and fed ex case law that says that you don't have to say something about everything and a number of our opinions we say we consider the other arguments we just summarily dismiss them so why is that it in of itself the just  cases on point for the specific technology that was invalidated under section one hundred and one dollars and the litigation conduct there is no mention whatsoever of the deterrence factor that is present in octane fitness there is no mention of true grit which is the same case decided by a different court a week apart so we are only left to guess what the district court may have considered and in prior decisions of this court such as new egg this has been pointed out as a basis for finding that the the inquiry by the district court was inadequate and therefore an abuse of discretion this is just reminding me was true raised to the i believe it's docket entry ninety seven but i would have to that's ok thank  different district court we argued that it was the same patent the same patent holder as the as the asserting a party asserting infringement the same analysis that we had undertaken in our two hundred and eighty five motion necktie there was a factual difference which we noted in a footnote in a brief i believe footnote seven where there was a discussion of whether because true grit did not shift products but rather provided software how the anti fishing claim of patent could apply to a non product and that was an issue the district court in true grit product and then we also brought up the distinction in our case where we have the covenant not to sue that was not present in true grit but yet another factor that strengthens our section two hundred and eighty five position and also if i may because it was asked the true great decision is the court this is an indian representing electronic communication i would begin by saying i think the court is correct finding that no reasonable patente would have brought the suit there that's not the entire basis for the decision but that there is a finding to that effect which arguably of collateral estoppel though that's not argu here but given that direct inconsistency don't you think that maybe the district court here should have said something about why it reached a different conclusion than the true grit district court d well your honor i cannot ask the court in hindsight to say whether that showed their work and way that is perfect but i would like to take a minute other abuse of discretion standard and you're wanting to make an argument to us and wanting us to keep you and opining on a question where we don't have anything below was called what the district court thought about and consistent finding in true grit that no reasonable patente would have brought this case that's directly inconsistent with what the district court said here right well that yes but but there's two to think that we need to look at number one the true grit finding is based on cases in another  involve claim eleven right and so the statement that no reasonable patente would have brought the case covers the same claim that that issue here very very different from number about the same claim as just pointed out i don't understand what you're saying they relied on other cases let me let me point out and the specification is not the analysis it needs to be used if it's unsafe the case doesn't meet the same pat i don't understand what you're saying it's the same plane that's involved in both cases but it's not the same case or nearly three years had a eleven hearing looked at the parties behavior in this case and i'd like reading from true grit ok tell me how it differs from the facts in this case i'm reading the list now i'm requoting the listed same claim claim eleven and the litigation practices e c t that were addressed by the district court in the central district of california and were not written about by the district court avail made available to the court the true grit decision and the conclusion that was reached in true grit that no reasonable patent litigation would have brought this lawsuit in view of the vulnerability of thank you we thank both sides in the