know argument next in case twelve eleven sixty three hi mark reuss whose health management system mr cocktail thank you mr chief justice inmate please the court the federal circuit applied to novo without deference standard to objective fees concerning the supervision of litigation which is precisely what section two eighty five addresses second the text of the act and in particular its key words may and exceptional imbue district courts with discretion indeed up until this case that was the way the act applied for sixty eight years and third the other factors this court has looked to such as a lack of law clarifying benefits the positioning of a decision maker efficiency in avoiding distortion cut in favor of unitary abuse of discretion review for those reasons the case for such reviews even stronger here than it was in pearson cooter and pearson cooter this court given to that in that circumstance and if you're the question presented is objective baseless yes and in the context of section two eighty five determinations that kind of wet specter of look was the attorney acting reasonably or not that that's a pure legal question so that would be an abuse of discretion we would not your honor so certainly on the merits if the question of claim construction went up to the federal circuit as it did here for example in two thousand and nine the question there would be th would be no deference under the federal circuit's precedent and most recently friday in the whiting ballasts case but when the question is a two eighty five question the retrospective look at objective baseless most of which claim construction forms a part no but i  guess my first question was just if if the district court says here's the appropriate claim construction and in saying that it's wrong is that a legal question as it goes up to the federal circuit under existing president they treat that as a legal question we think this court's decision and markman suggests otherwise that said it was a mix question a mongrel question of law and fact and so one if the court rubber to get into that no to make question on the merits  but if that's right why is it not also true that a judge is statement that a litigant at that elin against claim construction was an reasonable is not a similar mistake of law for exactly the reason that i think pierce says which is the question in a retrospective attorney's fees case is not what the win is not what was the law it's rather was the position that the party took reasonable and so for example in pierce the question was under a certain statute each do the words no and authorized do they mean mandatory and justice white in the sense that that's a sure legal question that something courts of appeals deal with all the time district courts don't deal with that we should give no deference to that and justice scalia's opinion for the court said no even there that is something we're looking at that legal claim situated within the particular contours of the case overall in deciding was that a reasonable argument isn't the main thing the judge doing when it says that claim construction isn't reasonable is essentially measuring the delta between the actual the correct claim construction and the mistaken claim construction and doesn't that seem to be again assuming that the claim construction itself is a question of law doesn't that itself seem to be a question of law we agree that's one of the things the judge is doing there but it's not the only thing justice in pierce certainly the court was interpreted in the meaning of the statute but they were doing it within the context of litigation this case i think is a helpful example and to remove it from the abstract and just bring it down to here you've heard and you've read the briefs on the other side saying this is a claim construction dispute it's not a claim construction dispute with the district cou seven different times when imposed fees that this is actually a dispute about infringement and their inability to come up with any theory whatsoever for why why there was an infringement violation and what i think the logic of  enormous time of resource time and resources of the federal circuit as they seek to desegregate is this really truly factual or is this really legal and you wouldn't want to have that i think for the reasons that this court has said repeatedly which is the whole goal in attorneys fees cases i to avoid a second major litigation and that's precisely what the federal circuit did hear it minted a whole new theory under this to novo without deference standard and that's the harm that's the evil that i think all of the attorney fees cases are trying to cases give the court i think further reason to return the standard to the way it has always been interpreted for sixty years in first for sixty years from one hundred forty six to nine hundred fifty two abuse of discretion deferential review was used the discretion we think that it is hard in that circumstance and that's the one way rocket we don't place a lot of emphasis on that in our brief it's our last argument but we do think essentially it is hard to overturn a district court's decision not to word fees whereas under the federal circuit's interpretation it's really quite easy for the federal circuit to mint some new theory as to why the position was reasonable that that the attorney chuck variation we think this court answered that problem in coon i think most particularly in a case where the stakes were you know not to belittle this case but the stakes were even higher there criminal sentencing and what the court said is yes there will be some just uniformity but district court judges are better able to determine the mine run case then will the court of appeals because they're able to assess the entirety of the litigation rather than than one piece of it if we were to overrule the brooks furniture standard you've just heard the arguments we've had issues being presented to us and if we were to do that how would that affect this case we're  question because you wouldn't have this subject if reasonable to speak controlling the outcome will it's really depend on how on how you did it but our brief it pages thirty four to thirty seven say that if you adopt any variant of the petitioners theory and octane the case here only gets stronger you have to i think ultimately reverse what the federal circuit said it page nine a of a petition appendix which is objective based on snus must be determined to know  question of law there are we don't doubt that it to answer the chief justice question from for that we don't doubt that there are some circumstances in which there are pure questions of law in section two eighty five cases for example what does the patent out of patent clause in the constitution  does a particular statute mean but when you're dealing with for example claim construction that looks very much like the ija question that the court was dealing with and justice scalia's opinion appears it's a retrospective collateral question about how reasonable was this argument at this particular time in this particular case with these particular parties with this particular patent and the what justice scalia's opinion in here says is that's not the type of question that we should be spending a lot court of appeals resources on that's something that is dealt with on the merits as it was here the federal circuit dealt with the question on the merits in two thousand and nine but not something that you should have a second major litigation over if there are no furthe fletcher mr chief justice and may please the court in this morning's first case you will decide what principles should guide a district court's award of attorney's fees under section two eighty five whatever standard you choose to adopt in that case we believe that a district court's application to the particular facts of a case before it ought to be reviewed under a unitary abuse of discretion standard that approach is consistent with this court's repeated statements that decisions about the supervision of litigation ought to be reviewed under a deferential standard and in this particular context it's also supported by the text and history of section two eighty five by sixty years of consistent practice and by the same sorts of practical considerations that led this court to adopt a similar approach to very similar questions in pierce and  er and co i'd like to start if i could by focusing on a point that hasn't come up so far in the argument which is we've heard a lot about why district courts are best situated to make the determination in a particular case that they've lived with often for years at a time of whether or not a particular bit of getting position is unreasonable and we think that's true and a very good reason to or deference here but we think another good reason joke or difference in this context is that applying an over review requires a substantial expenditure of appellate resources i think this case is a good that argument with respect to every legal issue that's raised on appeal well if you have to decide whether the lower court was right that's a lot of work but if all you have to decide is whether the lower court abused its discretion in deciding that the law means why should it when you've got a lot of money involved why should we say this is collateral litigation even though it involves millions of dollars more than the then the claim in many other types of cases so they say couple things about that one is i think a standard in determines what the right answer is that has benefits not just for the particular of that against before it but also in clarifying to walk for everyone going forward but what the court said in pierce and cooper and gail and what's also true here is that when the question that the court is answering is not what is the law actually but rather what could a party when they didn't initiate in this case and continue to litigate it several years ago could have that party have a reasonably believed the law to be that doesn't yield the same sort of walk verifying benefit in fact in pearce this court said those sorts of determinations are never going to be made clear under any sort of law is what's the difference between that situation and what's a deciding an issue of qualifying immunity in a civil rights case or applying the applying and in a hey b as case the court can say this is what the law is and then after law that's the second step determine whether a particular interpretation of the law was reasonable you can do the same thing here a court could do that here i suppose the federal circuit if the case came to it on the question was the district court did to use its discretion or to get right and decided that the party's position was unreasonable the could the court federal circuit could decide the underlying question itself and then decide whether or not the district  as correct in concluding that a party's position was reasonable or unreasonable but we think there's good reason not to do that here and we think that in these contexts unlike in qualified immunity unlike an ad the district court has a particular expertise in the case and a long experience with the case and that requiring the federal circuit to engage in a fairer view of the entire record of the litigation in the entire proceedings of the litigation imposes a burden that just isn't justified well i'm just wondering if you put together there are two arguments about what the standard should be  the standard of review should be whether there really is going to be any meaningful were view of what district courts do in the situation maybe you could just describe for me what an appellate decision would look like saying that applying the totality of the circumstances the district court abused its discretion in awarding or not awarding fees what would a public court say so i think one thing that appellate court might say is justice kagan alluded to earlier is that if the district court has based its few words on a misunderstanding of the law if it got the claim construction it misinterpreted the relevant patent statutes that would obviously be an abuse of discretion but i think even if the district court correctly conceived of the law abuse of discretion review still leaves room for an appellate court to say that although the district court had a wider range of options and has flexibility this particular decision on these particular facts strains too far from that range i think courts of appeals do that in the sentencing context they do that in other context where they were be discord decisions for abuse of discretion and we think that performing about role which abuse of discretion would you comfortably accommodates leaves plenty of room for the federal circuit to rein in any outlier district court decisions i think another point that's useful to keep in mind is the extent to which applying it to no standard of review encourages collateral leading to fight about which parts of the district court's decision are factual which parts are legal which standard of review review applies to different parts of the district court's decision i think all of those things are added to the burden of the collateral in a way that doesn't isn't justified by the benefit that an overview provides the last point that i think i'd like to leave you with is the notion that i think they're just sleet or earlier you suggested explained that when you're asking whether or not a party's litigating position was objective reasonable the federal circuit's expertise in patent law actually isn't the relevant expertise and she explains at length and she cites a number of prior federal circuit decisions recognizing as well that the district court who's lived with the case and who's decided on the merits and be seen the parties and i spent sometimes years with the parties is really in a better position to decide whether or not the parties litigating position was reasonable that reason the court has now for the questions we urge to justice and got that reversed my apologies all clear agrees that pierce and cooper are highly relevant to this case but we feel that those cases support all opinion in the or nail this case reinforces that for probable cause cases so the question is why why didn't the federal why didn't the supreme court apply the traditional rule in pyrrus and in cooter the answer certainly is not that they were feet cases because the peers case makes absolutely clear that it was not enunciate in a general rule for fee cases it said it couldn't in on cd general on the other hand what the what the court did was it looked at the specifics involved which was the tribunal best qualified or best situated to decide the issues in the case and it does discretion it changed it to exceptional case my colleagues on the other side argued that the word may suggest discretion while the word a is not tethered to exceptional might have been might have had a basis like the court a little agreed as i read the district court's decision it wasn't basing its decision merely on what it's was basing it on and it goes through a whole laundry list of things that it thought constituted abusive litigation very little pre filing  investigation continue a switch of claims because of the lack of that investigation pursuing a theory that your expert didn't even agree with that all sounds to me like a factual basis basically saying this litigation was abusive and i don't understand how that doesn't feed into the objective and reasonable miss meaning that if you had done the investigation you should have you may have had a claim or thought you h but you would have learnt much earlier that even your expert disputed things and you're likely not to have brought this suit that's why i read the district court's decision your honor with due deference there were four issues actually five because all care lost on one of the issues one of two claim there were four issues that went to the of federal circuit plus the one we lost on none of them involve three filing investigation what happened was the district court wrote a long opinion based on rule eleven we asked for reconsideration the district court dropped all the charges against the lawyers left the charges against all care and if you issues two of them involved claim construction and the third one involved claim construction the one we lost on the fourth one was whether or not the the all care had a right to rely on what happened in east and distribute genya in which we had the same claim against a different party and the two courts reached different conclusions on the same issue on the same claim which you alone should have just should have found that it was objective lee reasonable but was not and if the for the last one was whether or not alleged misconduct a misrepresentation to the western district pennsylvania before the case was transferred whether that was san clear that was a legal question the case law made absolutely clear that you cannot look at conduct before another tribunal to decide whether a different tribunal should sanction you every one of those issues the three claim construction issues alleged misconduct in pennsylvania could be sanctioned what was also a legal issue we had no factual issues in this case and and i suggest you look at the pages starting with one thousand a and read the court's opinion and they basically said contrary to mr caddy of common the issue was one of claim construction it was not one of infringement there was a special master in the case and the special master first gave a claim construction favorable to all care and then in a summary judgment hearing he changed his opinion and judge dykes opinion for the majority of the court basically notes this that he changed his view and he came out with a different view but the issue was is and always a claim construction issue and even they concede that kind construction issues are reduced to know a point has been made about pure issues of law and impure issues or they don't use impure but i assume that's the congress were pure issue of law and they say that only certain kinds of things are pure issues of law and it does not include objective well i suggest that the court look at scott versus harris skype versus harris says expressly that claim that objective reasonable miss is a pure issue of law review did not go when it separated from  factual components and it is our position that the factual components are reviewed deferentially we're not arguing to the contrary always saying is when you've got a legal issue the best court situated to deal with the legal issue and to avoid problems like we had with the east and distribute genya on the same plane same issue going a different way from the northern just of texas will be avoided the whole purpose of the formation this was discussed in the octane case hope purpose of the formation was the of the federal circuit was to provide uniformity to provide predictability when you've got ninety four district courts and hundreds of district court judges going different ways some of which are friendly to within its own docket so i'm not sure it's succeeding in bringing about uniformity your honor i have i apologize i mistyped point well i'm just saying it to the point you're quite correct that the federal circuit was a stablish to bring about uniformity in patent law but they seem to have a great deal of disagreement among themselves and are going back and forth in particular cases in this area specifically about what the appropriate approach is your honor they do have that's the way a courts should operate when they go on bonk you get a divergence of views it's like the supreme court you have lots of dissenting opinions concurring opinions but it's a single body and a single body that has jurisdiction over all the two eighty five cases is better situated then to have a lots of district court judges ruling on questions of law you know we're only talking about questions of law will they do sometimes i mean are there a lot of areas of the law where they i mean holmes thought reasonable not given undisputed facts is really a question of law probable cause matters are really questions of law if the facts are on disputed cases all over the lot of the case we have i saw once that said isn't eclectus parrot a wild bird for purposes of a statute that says wild birds cannot be imported and the judges there said well there's this characteristic factual da da da and there's this characteristic really where if you really put your mind to it you'd have to say that was legal does wild mean in the country of origin or in the country of import you know you could separate it but there are many many areas of the law where judges don't bother to separate the two things and isn't claim construction like that out i mean you have a case and the claim construction is always has in mind what this infringing item might be in respect to the claim and so the judge is always looking at that like that very often factual matters of their legal matters are there and judges cannot always separate the one from the other or even if they could they don't feel it's worth the effort your honor there are times when it may be difficult to separate facts from the law and in the mark in case the court talked about it as being a mongrel type of situation but the fact is that in many cases you can separate them and w  so the fact is you're still better off which is the best tribunal to deal with the question i'm not saying that it we have a perfect answer because there's not a perfect answer on our side it's not a perfect answer on their side but there is a best answer and i suggest that the best answer is to let the legal issues decided by the court to get that gets tons of patent issues that has a lot more experience as justice alito mentioned in one of the points that he made rather than district court judges who may get a few cases may get a lot of cases and what district you're it but what about judge moore's point that when you're talking about pure issues of patent law maybe you're right but when you're talking about baseless n'est that's  something that the district courts actually have more experience with whether it's under the job whether it's under whether it's under qualified immunity that's an issue they see all the time so maybe they're more expert than the federal circuit your honor on the question broadly of objective basis as one might say that itself but on the question of objectives baseless this in a pattern context in a two eighty five context we've got legal issues we've got client construction issues they are certainly purely local issues that crank construction is review deneuve oh so that is a perfect example of how district courts can disagree and this case is a poster child for that because we had two different courts going to different ways on exactly the same point exactly the same issue and the pierce case race there are other considerations involved there are a lot of considerations of law but others in terms of which tribunal is better situated and the pierce case pointed out that the size of the field involved can be very important and i'd like to address that just very briefly the size of the fee involved in patent cases as my daughters would say you mongoose some of i've been in two cases where the legal to the fact is when you've got fees like that there is going to be an appeal typically the appeal will be consolidated with the merits of the typically the court will be dealing with the issues both of them in the same case and as as judge dyke pointed out having reviewed the merits decision the two eighty five decision awful often involves the same kind of questions and it is not an enormous burden on the course you do that and given the amount of the fee there's going to be an appeal when you've got a large legal for regardless of the standard of review so you're not i don't think you're going to get a meaningful number of additional appeals that you otherwise would not get and the fact is that the size of the fees was independently noted in fierce as a factor on the rule of an issue in pewter the the this court talked about the fact that  the district courts were best suited to deal with those cases because they were familiar with the local practices the whole purpose of the federal circuit is not to be concerned with local practices but to be concerned with national practice that's the federal circuit is no more expert in those areas then a district what would be on the on what kind of issues are out of date you mentioned the venue question yes and i was surprised income up in all kinds of cases so there's nothing expert about the federal circuit on those issues your honor i have to acknowledge that on an issue of whether or not a conduct in a different circuit should be sanctionable in another circuit the federal circuit is certainly not more expert on that kind of an issue that another court that that that is merely an example of what happened in this particular case i will note that the federal circuit cited a number of cases which have the exactly that and moreover what happened in this case was that even the district court  judge means in the northern district of texas noted that the pennsylvania just record itself did not seem to place very great be alliance on it it would probably was the least significant of all the factors in the case and so i would say it is really an example of a legal issue and there will be some legal issues in which the federal circuit may not be more expert than others but there will be a lot of legal issues since we're dealing with conduct in patent cases on which the federal circuit is the most expert court and in any event we're talking about how can we get uniformity of decision making in the two eighty five area and you've got a road both rule haven't and the  cases went to thirteen circuits the two eighty five issues go to one circuit so it is much better to have a single court ruling on those questions than to have multiple this you know one what you want you have a statute that confers discretion on the district court you don't expect uniformity of decision making it gives the district judge a broad broad discretion and some will come out at the top and some will come out of the bottom and they'll all be be affirmed by the court of appeals so what makes you think that that this statute which clearly confers to discretion in visions uniformity let me a part of the district courts let him see me quite clearly statute in two eighty five and they talk about the revisers note and p j federico is commentary as to what the new words matt and the new were the new words meant that they were focusing on the them and not a single one said legal issues are reviewed with deference not a single one a lot in the news discretionary language but none said legal issues  we'll all be affirmed so that seems to me this does not strike me as an area where congress expected uniformity you're creating uniformity in one barrel aspect of of this decision that involving we group claims but there are many other aspects of the decisions that will destroy whatever uniformity you're trying to achieve donna i hadn't finished my points let me just finish it which is a response to your point and and so all of these cases none of them said legal issues are reviewed deferentially and all i'm saying is that if you look at the legislative history if you look at the textual change of the statute those cases in between w concerned that the district courts work in simpler construing with deference to loosely and they tightened it up with the exception of case language but they also said it's that legal questions are reviewed to novo and all i'm saying is if you look at the statute we want the district courts to review rule on the facts we want the federal circuit to give deference to their ruling on the facts but when they get into the legal area when they make legal decisions we think it should be because the statement that you read most lawyers would agree with that statement as a general principle and then the question becomes will it work to decide whether this is purely legal or whether it's legal factual mixed and sometimes and sometimes the other and there are really no key to it exactly so what you're doing is saying in an area where there are a lot of the deferential kind and some of the non deferential kind we want to say the federal circuit and all the district courts have to stop and think about thing out the other side says look just leave it to the district court and tell them to review there's a simpler what do you say justice bar my response is that in many cases there won't be a problem distinguishing between law and fact when there is a problem there will be some cases where there may be a difficulty distinguishing between law and fact and that pearson says and what cooter says and what a lot of cases say is which is the best tribunal the district court or the appellate court to deal with it and all i'm saying is there always be not sorry i'm i'm a little confused with respect to winning or losing the case you're going to get to know full review because the federal circuit here looked at the claim construction under the noble review agreed with the district court that it had construed the claim properly and that you it so you got to know the review the issue on a reasonable grounds to pursue the litigation whether it was objectively reasonable or not i think that's c claim the one that issued here even after both the master special master and your expert had said a particular claim wasn't sustainable and it continued  long example of behavior examples multiple ones that it found on reasonable having nothing to do with the ultimate reasonableness of your last argument before the wrong and legal answers it your honor there are two facets to the answer i would give to that question one is that all of the points you made about what the district court found were not issues on appeal the district court found lots of things but the four issues that went up on appeal did not deal with all the facts you're talking about they dealt with legal issues there was no pre filing investigation issue the federal circuit expressly found that in footnote in its opinion there was no pre filing investigation issue in the final decision on appeal because the district court made multiple decisions one was a rule eleven decision in which he didn't provide a safe harbor for anybody and we went in and we asked him to reconsider it and he changed his opinion and dropped everything against the attorneys the that what went up to the court were for issues and they were for legal issues and all i'm saying is that that want uniformity if you want predictability the best way to avoid chilling the white chilling not only patent ts but accused infringers from being willing to go to court for fear that they may have to pay thirty or twenty or ten million dollars and the accused infringer from defending against it is to have predictability to have uniformity in decision making which you get from having a look court reviewing those cases and that single court is the federal  and i submit that those are the two answers to your questions i hope i've satisfied if there are no further questions i rest thank you counsel mr cocktail you have nine minutes remaining thank you i'd like to pick up on justice sotomayor as question about the facts of this case because i think what you heard from mr dunne are alumina it's our position on why the federal circuit sanogo standard is so problematic we warned of course that the dyno standard would become a magnet for litigation and encourage to eighty five losers to world the dice hoping that they'll can repackage a factual dispute as a legal one in the court of appeals in peterson cooter warn against that and say that's a waste of resources as justice prior you're picking up on it and  sotomayor they say you've already had america terminations as their one here this case proves that you heard mr dunn or say quote there were no factual issues in this case and he talks about the tri gama ruling from the eastern district of virginia as the district court here found petition appendix sixty three a try gone was irrelevant because the question was infringement not claim construction and not why sanctions were imposed and if there's any doubt here's what all cure is own lawyer told the federal circuit in two thousand and nine these are his opening words quote summary judgment was granted at the district court in this case for two reasons first it was held there was a lack of evidence from which a reasonable finder of fact could determine the step of fifty two c and secondly the district court held even if there was evidence that step fifty to see was performed there was insufficient evidence of direction or control question from the court this really seems like it's a claim construction issue for us as to the meaning of his claim answer from all cares lawyer i would disagree that claim construction ought to be revisited at this level in one nine hundred ninety nine this court expressly stated it was inappropriate to sue a sponte revisit it now i'm sorry to belabor the facts here but i think they illustrate the wisdom of justice scalia's opinion and pierce as followed by cooter in coon which is clever lawyers can always make arguments on appeal make them work make them look legal when they were factual this case is example eight and now my friend on the other side has said that that there wasn't history from one nine hundred forty six to one nine hundred fifty two will encourage the court to look to the cages to the cases cited at pages eleven to thirteen of our brief and in particular to look at worsen versus a fourth circuit case which says that in evaluating whether it's quote no reasonable ground for the prosecution of a motion the court says it quote cannot be said there was abuse of discretion in many of these cases they refer to the abuse of discretion position was reasonable after the fact in collateral attorney feed litigation this court has always said in all of these cases that abuse of discretion deferential reviews appropriate appropriate now justice alito you had referred to the size of the award here and to be sure it is different than peers it's not different of course than cooter because in kuta we're talking about will eleven same sions which can devastate an attorney's livelihood and nonetheless the court in cooter said they would apply deferential of discretion review there i think the best answer to that is coon itself in coon the stakes are really high jail time and what the court said is defer to the district court because the district court has the best perspective the kind of bird's eye view  front seat on litigation and that's why this case is different than for example scott versus harris or just the you know the qualified immunity cases because in both of those those questions involve things as to which the district court doesn't have a court side or ringside whatever term want to seat they're not present they're not there at the scene of the crime they're not there when law enforcement is conducting whatever operation or something like that scott versus harris same thing it's not a qualified immunity case the summary judgment case and the