did i didn't see in your right if the brief if that's not in the brief your honor i accept that it's something strikes me as an important issue not raised in this case but we are certainly raising it under that permitted summary judgment on indefiniteness during claim construction but otherwise it has a letter brief proceed in that set up that permits you to file summary judgments permits you to seek permission from the court to file summary judgment via letter brief which is precisely what we did when we had the opportunity to do so per the court schedule this case for two and a half years and then it was transferred to washington and so this is not the typical attorney's fees case in that the conduct that we contend here is the bad faith and sanctionable conduct mostly occurred before the district court judge who ultimately did not make the decision on fees despite this finding judge wasnik did find this case to be exceptional and he did find under inherent powers that there was bad conduct however based on that finding he awarded intended only thirty three thousand dollars in fees and a more than seven million dollars in fees sought less than one half of one there isn't much necessarily in that time records that precisely call out investigating seven hundred products there's a lot of the record that relating to the effort made to obtain discovery from the retailers to work with the retailers and figuring out which products they sold how those products were on the all all of those things which was made much much more difficult with respect to because of the additional products but judge l an error with respect to this aspect of the case and that he concluded that the infringement contentions were amended with respect to the products that were actually investigated with only with respect to claim construction and that's footnote four of his order and that's simply not the case this is a case where the infringement contentions were amended six times only want only contentions number four were amended based on plain instruction all of the other amendments were based on either letters that we wrote forcing them to try again on infringement contentions or three times based on judge davis's orders what's your my point is that that is that makes judge last six ruling here with respect to excluding fees regarding infringement intentions clearly erroneous he abused his discretion because of because he did not understand that fact that the in the infringement contentions here for the products they did investigate were not amended based on plain construction and they were there were amended based on the plaintiff inability in failure to articulate eighty five and in our view is that because judge was it did not understand that fact that he erred on only awarding the thirty three thousand dollars in fees as opposed to looking at all of the fees relating to the getting getting the amended contentions briefing the contentions issue and forcing plaintiff ultimately to disclose what their actual theories were this is a case where the last set of intention wasn't filed until after expert reports issued we didn't know their final the season final series and judge davis found we didn't know their final theory on pell expert reports were filed and in our view that is certainly something that that warrants more than thirty three thousand dollars and feed the other thing here that i want to get to is that the failure to investigate the product issue to the judge last week did find to be exceptional and oppressive that also directly relates to the venue issue here judge davis issued his opinion transferring this case and he talked about plaintiff's conduct after sitting on this case for two and a half years was the interest of justice and play this it takes that statement and says well he's only talking about the fourteen zero for a transfer problem when he's saying that and i submit that although it's not part of its opinion he is talking about more than that of weave when this case was filed as this court has found the complaints this was about nintendo's product we filed the proper sever transfer motion and to try to stay the retailers to simplify this case the response to that was to blow this case to accuse seventeen hundred plus other products that were never investigated and say no the retailers they are proper parties they shouldn't be stated the case should be transferred retailers in this case and kept the district court from separating the nintendo and staying the retailers for two plus years during that time we defended ten plus retailer depositions did discovery  discovery on behalf of ten plus retailers the fact that the retailers ultimately got dismissed out that's that's great but they shouldn't have been in that case for that whole two and a half year period to begin with they should have been stayed and that's that's where the bad faith conduct was is that it delayed that resolution and just to kind of beat this horse a little bit more at the end of the case there were horse i hope it's not a dead horse your honor if you believe so i hope to convince you otherwise but the at the end of the case there were there were eight retailers left in the case six of those retailers plaintiff didn't seek damages on other the joint and several liability damages so we've litigated a case at that point through expert reports for eight total retailers that are left and they don't even seek damages for six of them other than this the joint and several  the sale of the nintendo products that were accused to begin with and that's that's just in my view just last night's opinion here in that the fact that it's so sparse and he doesn't clearly reconcile judge davis decision and judge davis statements the judge will live with this case for two and a half plus years that to me is an abuse of discretion and should be remanded and just just to close your will stand on our on our brief with respect to the direct pointing and image sensor claim construction issues but the last point i want to make here is there's you know the sanctions for attorneys fees awards they're twofold they're for compensating for money spent and for deterren and thirty three thousand dollars in this case does not accomplish either of those goals and therefore the case should be remanded back of reserve rest  is that the scheduling order in the standing order from the quote from the judge district judge in the eastern district didn't bar an early something just action so that's what's in the record and i'm not going to tell you what my personal  experiences with the eastern district because that's not in the record what is in the record is they had the ability and they were not barred from filing early summary judgment motion the court report the washington district court granted this thirty four thousand dollars in attorney's fees and it is based on findings which we can't tell whether they're two eighty five  or the inherent powers but regardless of which ones they are no doubt the district court has discretion and the standard is abuse of discretion so i want to tell you why you that's the portion of the second half page the bottom half of the page is the portion of such lacerates order that made these findings and the findings of what they refer to them with the court refers to as bad faith is based upon a non testing seven hundred products so we have accusations against one thousand nine hundred games and we tested two hundred of them so the criticism is we should have tested more and you test two hundred you acquired two hundred we acquired and tested two hundred and there were seven hundred that at some point in the case were accused products that we neither acquired or tested and the reason why is of the two hundred we tested one hundred percent of them had the we pointing feature that we were starting infringement and so there was no need to test the remainder it's not require remaining seventeen hundred were substantially different than the ones you acquired yes and i'm going to you are going to tell you why you should second guess that and the finding was and so so what this tells us is this finding that they were substantially different that's an implication are also explicit that if we only acquired and tested those others we would have found they didn't have this feature well no i think it's a statement that they were substantially because the allegation or the finding of what is different is there's two things one is that certain games had never been released to the market and the other were that they were these were older game systems probably would have probably would have discovered that we could not have acquired products because they weren't released ok but the reason why that isn't sanction will conduct this we were relying upon the reason why we named these products is because we tested two hundred of the ones required one hundred percent had this feature and we believe that all we games therefore infringed and so we looked and found a nintendo publish list of all we games and that's what we used and what that resulted in this is not intentional naming the products that were released into the market this was an honest mistake and it was based upon reasonable reliance upon a published list and so then you want to look to what are what do we do when we were shown that these products had been released as soon as we found out as soon as we were notified and then nintendo filed a motion complaining about it and as soon as we were notified we withdrew those games from our contentions and so this was not some intentional naming of products had been released and it's it's very relevant to look at what we did when we found out and we immediately removed those when asked for any further evidence we took them at their word and we removed them so this is not to name this naming of it was sixty products that's not intentional conduct it's not sexual conduct the next one this finding this is an erroneous fact finding where it says others will use with older game systems that were incompatible with the with the pointing features and when they were released as we games and we confirmed we have been firm can we put the evidence in the record that these games all use the point feature this is these claims that we were soaring above our claim so if it's computer software that it's instructing its software instructing a computer to perform functions and that's exactly what these games do the rereleased games they have the start procedure that has the direct point feature that week used  that allegations that we hear from intended is well that's just a start procedure as per the menu it's not part of the game well that's not the issue for infringement and furthermore there we menu we've confirmed and we have this finding others were used for the older game systems that were incompatible with the pointy features a wee wee remote we have absolute evidence in the record that that is an erroneous fact finding it should not be upheld no matter what the the level of discretion  so it's a sanction against the parties here you're correct but it's certainly a blot on the attorney's record but what but the relevant issue and legal issue is there should be no sanctions for this conduct that is based upon a faulty fact finding and there is it's more than just the finding of these facts there's  report and we've done it here where we show our justification or reason reason or reliance upon this published list that's one of the sixty games that weren't released into that in the claim in the infringement contentions for a brief time this inclusion of what they refer to as older game system these are release game systems those we maintain those and even after they complained we showed that those had the infringing features the infringing features use of the wi remote for pointing one or the third amended infringement contentions and the claim forty seven which is the claim that involved almost all of these products is the contentions related that claim began at a forced six at a seven four six three plaintiff had four separate series of infringement for the games the first one was this quote they call it a game started out but it's actually not a game start at all it's the we many of which resides on the on the we system as firmware it's an it's not a a game it never was and that's the best evidence here what's going on is we have sort of a theory shift as this case progresses plaintiffs discovered this with this we menu aspect and actually accuse the we menu as being nintendo's infringement at the end of the case and that showing by the expert report that their experts  joleon cooper put forth a one four nine six seven and a one four nine seven nine an eighty there in opposing summary judgment plan of cites to the exact same evidence as evidence of nintendo's in front and intended as infringements that it citing for now to support it theory that that all these games that their failure to investigate really didn't have any effect as the record show at the same features is two hundred right all right that's correct your honor and what in particular we can with respect to their second theory which is the in game operation these games did not they sought the source code for all of these games and their theory for game infringement for example claim forty seven which has a first point element and at a one at a five one zero three they're talking about are whole theory with respect to that was that that was a game feature and had they investigated this case properly including the two hundred they would have known that it wasn't a game feature they conflate first of all this that this we many features not accepted my hypothetical i'm saying that it's the same the same seventeen under the same as the two i'm not i understand you have pathetically runner and my my response to that is that there are two hundred that they did investigate under this with a quote game start of theory is actually about nintendo it's not about the games at all these third party manufactured games or the nintendo games and so even if they were even if your sanctioned for brain claims as to the as well no that's an argument that they didn't this big didn't investigate the other seventeen hundred thus we didn't have any idea of what their theories were under even if your premise is correct with respect to the first theory with respect to the second theory we didn't have any idea what their theory was and they had you know they're saying there's thousands of these first points in every game the games are different you know in gameplay that each of these i'd like for you to distinguish what's in the record versus what is attorney argument when you hear counsel say that the this start up procedure resides on the we system is from where look at every place in the brief where they say that there's no record sign it's not in the record it's a turning argument what is in the record is that the we that same thing they say is on the firmware which i don't know whether it's on the farm or runs on the record what i do know is what the record of an evidence shows is that the we menu is on all the we game discs and once again it's a question of the structure of this claim forty seven we were asserting infringement against the game disks so record evidence sites that they want and they designate as confidential it's the fact it's record evidence and when we test two hundred games one hundred percent of them have this feature it's more than just an assumption it's reasonable inference that all the other games do too and yes that the record is silent as to whether or not the seven hundred other games have the feature but i think there's plenty of circumstantial evidence that there is and it's telling the fact that the record is silent and then intended who controls all the manufacturing of these disks hasn't brought in a single game that doesn't have that software on disk i can guarantee you if there is any out there we've seen it in the record and that was a reasonable assumption inference when we made the allegation and it remains today we still believe that all of those games and we insert we have a weak system we insert the games and we we did screen shots that we put into the record for the pointing feature of the start menu and even when you go into the operation of the game and so that's why you see the excerpts in the brief of the screen shots that's in the record and we provided those as part of the infringement contentions and so once again when we test two hundred games it's reasonable conduct we should be required to test all seven hundred and there's been no showing that if we had tested any more of the seven hundred that things would have been any different except of course for the very late in the game and you're talking about a post judgment proceeding on attorney's fees and we were not we were not doing discovery were on acquiring more games i think it's still reasonable