cases say that the experiment used exception doesn't apply to clinical trials and yet look at the eli a legal aid so that seems pretty clear that the least in some circumstances situation was as follows them understanding is the only out was not big enough to make our enough crystal uneasy with tablets for crystal in eighty themselves to be able to use in any kind of phase ileus motion to keep it out of the cage but during that entire time we were seeking the deposition of mr martin to try and take his deposition and exactly the point that i'm making now which is three clinical trials and there was the argument is behead to wait until the trials are finished to see if i use the word literally the pills will work the problem with that argument factual literally doesn't qualify as an experimental lives if we disagree with you on that argument do you think we can just go ahead and suffer the denial of attorney fees even under the of disagree with you on a legal argument that you were just making is there any reason and we find that you're wrong is there any reason to press the send a back to the district where the retail industry is the only reason your owner is aware that i mentioned  doing it based on your belief that that you made the legal test yes but there's also no you ran through the legal question i mean you're making a strategic decision i'm not going to disclose this information because i he was asked about this the sales or whether they were curious whether they should have been disclosed the patent office there was no depositions of the prosecuting attorneys there was one deposition of a thirty six witness who was supposed to speak on behalf of the prosecution there was no and it's not controvert the parties knowledge of this happened why isn't that material evidence that should have been disclosed to the p t o if the belief was it was there's no evidence on there for example terrorists to say that there was some sort of material attempt to withhold it from the patent office or even to say that it was known to be material in fact from the perspective of gil because it was experiment to use under the pfaff case it it's negated the whole point is that this is a commercial sale for the purposes of for primary it's primarily for the purposes of experimentation and that should that's not to be maternal don't you think well it has to be even cereal if it's understood by somebody to be material whether or not again if there was testimony that said they knew this was material again the point here for your honor is that juliet is trying to figure farmers trying to make this case an exceptional case and in order to do that it's got to show that this somehow stood out all right and the fact that there was some question as to whether or not this was a commercial sale or not i don't think makes this  hole is deception and i don't think we've gotten that at all from similar form and in fact i don't think the judge is depending opinion at the district court level is a problem even though the the change there's been a change even though that the brooks furniture case has been you know the standard has been put aside i don't think we have an issue because i think what we've got here is a situation where the judge and you know i can quote from her from her do well again i think your honor my point is and as we point out of page eighteen of our brief the district court despite citing works as it had to at the time really didn't answer the questions posed by  not had acted on reasonably in litigating the past and this is the same situation that judge bryson was faced with in the bianco below his medical case where he was sitting in the eastern district of texas and his conclusion in denying the request for  reconsideration after the judge at the court's the supreme court's decision in octane was that this court's finding that neither part of the prior test the brooks test was satisfied thus largely answers the question of whether this case is exceptional in the supreme court's new test and under this consolidated aluminum case that we say in our in our papers this court can in fact look at it and say centrally that yes the case that standard has changed but the district  whether or not this is one of those rare and unusual cases but we have to keep in mind is there are two patents or in this case the one five nine patent and the three for now single form has not appealed the one five nine patent and the decision of the district  the one five nine patent not to grant attorneys fees and to find the case essentially not exceptional with respect to the one five nine patent and i would submit your honour's that their failure to appeal that one essentially concede that the district court was correct but i think it tries to take the focus away from that portion of the case where the court actually found that juliet was correct and they single form would like to have this court not focused on that whatsoever by not appealing it but i think as part of the totality of the circumstances of the district court actually did in fact consider we have to not leave that out  going back for a second to my colleague's request about the depositions and he had talked about having to depose the president of the company and c e o of the company there was gushing about that and we projected at the c e o and other things going on however our point was there are specific to this memo forty six other people forty five of the people you could depose first and we never said that they could not have them forever what we said was take the people that are more relevant and if in there was no and no intent to to withhold this material from the from the patent office i think the fact that she didn't get into that issue which is important because i think it does showed that she was addressing more than just the brooks furniture case but the overall totality of the circumstances that was going on in this particular case and you know she dismisses the claim with prejudice there was no appeal from that so in fact the three that patent and they want to be claim is out of the case there really is no need even if it were to send the case send it back to the district court and she would take further discovery on this and fees and whether this case is is extraordinary exceptional and that that's it that's the issue but signify i want to take this back to take more discovery on whether or not you knew that there was a material withholding from the patent conduct have been dismissed with prejudice and there was no appeal single form conceded that the district court was correct in the nine attorney's fees claim as to the other patent here by not appealing it and the sales as mr rose