and second kids today feel number fourteen gosh twelve eleven clerisy corporation versus air where holdings incorporated for reimbursement of some of its feeds and costs in the context of a room forty one motion the main problem that the that the district court had won in didn't use the controlling law in the ninth circuit the ninth circuit lost the controlling law in the west vehicle for a second season cost attorney so you need an independent basis to do that whereas our motion under rule twenty one was specifically to the parks so as such it's clearer and an abuse of discretion as a matter of even if is obligated to do that as i understand the ninth circuit there's no requirement that mandates and the district court judge to grant sees under forty one and two under circumstances like it's it's within the judge's discretion and as i understood the judge's opinion here he did say that he retains discretion on whether to grant season the same yes he does and i and i agree with your are the key does have discretion is broad enough to where we wouldn't be able to really appeal his judgment but in this case he clearly used the wrong law to reach is to reach a conclusion instead of doing analysis that's required by the ni i'm sorry go ahead with eight if it's considered the fact that it was a covenant not to sue as a as a significant factor here and your honor on the cover not two to three point one none of that is ninth circuit law was but it's a factor that's a court took into account in exercising its discretion on the route forty one but it is not in you know in applying that tack on the rules it cites from the missouri case the fees and costs are paid now those are ordinary circumstances all we're asking for is that the court actually apply those rules and explain why in this scenario where and i'll get to this in the one hundred twenty seven where they can't make out a case for infringement a viable theory for infringement and we've incurred the possum defense of defending this action all we're asking for is the court to actually apply that and say why this ordinary certainly was not an ordinary circumstance where we get at least a portion of our fees and costs paid as part of the conditions for this voluntary dismissal that plaintiff is request this is heck form really do we have to read it and understand it then only  different analytical framework when trying to figure out whether to punish attorneys versus whether to punish parties the language of the rule itself doesn't make any such thing and i agree to your honor but the reason i think this court would have to make that attorneys other than attorneys you need to have a specific independent basis and the two that they talk about for the end of that paper are ruhleben in one thousand twenty stab and they say because rule forty one as drafted is more general that it can't be applied specifically to attorneys and should only be applied to parties and that is the law that circuit so happen for a very very is that it it really is a case that tells you the  for treating an attorney differently from a part of the rationale is a you know i think it goes back to the basic notion that every part every party pays on a lawyer and if you're going to shift and have an attorney have  that because they say that the general one and the rule is it's not to the attorney but as i understand it there's no nine circuit rule forty one eighty two when it comes to return means you need an independent basis but when it comes to parties you do not need an independent there's there's it does there's nothing in the ninth circuit that makes it that clear right i think i think you'd be asking us to sort of extrapolate on that no i don't think i would be i think if you re independent basis means does that mean you have to just provide some kind of rationale and the basis for why you would be awarding sees or does it mean you need some separate that story paragraph discussion on that issue there's a paragraph that leads with two provisions that are in the rules that you can use for an independent basis it starts with rule lebanon section one thousand one hundred twenty seven and so one read would be t the independent basis there is a separate statutory section now i don't know that body of law completely don't know if there's another case out there that expanded beyond that but if you were to read the four corners of have to thorough i think that that's where that's going with the independent record there is not a viable infringement theory is the airport from the very beginning of this case to the end of the case they've had this product is the product and they have never identified the barrier that's in the claim the claim has factions they've had this product in the very beginning they've submitted claim chart never once have they told us what the barrier is to this day they've never identified the barrier and it's fundamental to patent law that they have to identify claim construction argument so you can imagine at the time the file whatever what they're broadcasting construction that they felt that they could get even under that theory they can't come up with a viable infringement theory this is not one of those cases where i'm saying we could construe it even said no to that it couldn't find a barrier you didn't present or provide any technical documents right terms of your manufacture your device and we did provide a during discovery your honor i thought there was a motion to compel there was a compel but we provided if i remember right we provided video in maine maybe so the district court was wrong factually when it said an instance in that you didn't provide any technical documents yet they were wrong about that we did absolutely provide technical but i think they knew the method a minute they had videos of the method of manufacture and then they also took the depositions of mr dollars all in mr dahl which are and they knew the method of had the claim construction and we felt like if we tried to jump the gun we're going to have to go through a claim construction and then see how that plays out before we're going to be able to be successful on the summary judgment motion also we felt if we put the facts in as we know it no matter what they're going to have a fifty six after our motion to try to do the discovery they need to do and so we thought we would actually make the cost greater than they were than they already were going to tear from the other side thank your honour's in a police court the district court's decision should be affirmed for three reasons first air where its primary argument on the seal and pervasive argument is feel that clarity allegedly failed to identify a barrier and use products or a t theory of infringement is the barrier is false in belied by the record before this court the fact is clarity did identify a barrier based on specific information provided by error that was its demonstrated by the record in this case it was  the case management report that was submitted by both parties in january twenty third scene and it's over the court had asked for the parties to set forth on their claims and counterclaims we set forth the specific information that we relied on that was provided by air were manufactured so that there were no essential oils on the ring that touches the inside of the nose and that the essential oils in the products do not touch the skin in any way at this demonstrate we did identify a barrier the brain that touches the inside of the the and he didn't ask for permission to give this a court but the rain that touches the nose on the outside of this product air were c e o represented that the products are designed so that ring that touches the nose had no essential oils therefore that satisfy the barrier limitations of the district court construction a barrier with a portion of the vehicle that prevents with respect to the barrier on j a thirty this is page thirty i'm sorry page seven of the court's decision in the report that's the joint case management report twenty fifth set forth their position with respect to the presence of a barrier and defendant products recounting the information provided and sorry received from mr is that that information was provided to air at the beginning of the case in august twenty twelve as demonstrated by her letter it was service of the carrier your honor and this was the fundamental point in the claim construction is is our position was that that i can accuse device all of it has of a barrier portion and that could service portions service the carrier portion service the barrier they took a hard line on that and their position was you needed separate and distinct materials the court rules against them on that issue and the fact that for the first year of the case in this case was only fourteen months but the first year of the case their position as demonstrated by their interoperate a response was that they were relying on that for the barrier and if you look at the they're in progress or response was the barrier and every single one of these bases were live on unclaimed constructions which they ultimately want with respect to the barrier all they said was third the identified products do not incorporate a barrier as required by the all they said there's no documents here to support what they're saying and that's where we ask and we said what are you relying on for your not infringement bases or some counsel said they did provide that they did not and there's nothing in the record for so there's nothing in the record they say they are the videos there's nothing in the record to support that certainly nowhere in the briefing wasn't provided to the district court and in fact in just in july and with this record indicates it is they said quote we will not list for you the documents that we may select a square on a printer and the collection of documents that we will rely upon to support our nonappearance we contentions is protected work product that's july of two thousand and thirteen a year into the case they won't even tell us the they're relying on to support the non french position we had to file a motion with the court and use this to us as basic information is that if they're going to say we don't infringe well tell us the documents relying on we had to file a motion with reports that as of  who's the c e o of clarity a j two ninety seven there's no possibility of reverse engineering that we're aware of to certainly no argument not a single allegation or argument in their brief that the product be somehow reversed engineered cla specifically to air where to get this information and it's the record demonstrates that was contained and it was a contemporaneous correspondent that acknowledged everything that happened about the conversation that was provided it was verified maida and it wasn't just after the fact that was provided to them from day one and you have nothing on this record from mr is that it's completely silent as there's no opposing separation from him saying the conversation didn't happen or that he didn't say it and that's what we relied on in good faith as a as a one of the bases for infringement claims here and again it's important to keep in mind when we ask them to pay for the entire fourteen month time in case they wouldn't tell us the documents they were going on for the information position now we we cited all this the what we what we characterize as false arguments mistrust misrepresentations of the record which we called out in our response brief a thirty page thirty to forty five seven pages of we characterizes misrepresentations in its reply brief it didn't address any of this it decided to double down and continue to say that to identify a barrier we did identify a barrier in good faith relying on information provided by air we think the district court's decision should be for that reason should be affirmed in all respects and quite frankly the only issue for the court decides is whether air we district court's the decision that it could not award fees in fact the clear the court clearly indicated that have the discretion to award fees but it chose not to in view of the having it not to reveal your position that the district it seems dunces air where asked for broad relief from the district court and this is as indicated on page twelve of their opening brief they say air where asked the district court for award of fees levied against either used to apply against an attorney's and that black letter ninth circuit all you cannot use rule thirty one eighty two to apply to attorneys and their ex concede that there are many brief they say later on and on page twenty that yes you cannot use forty just not that had borne the important thing is and is as the court has recognized in the in the very next paragraph the court clearly acknowledged and agreed with the sense that it had discretion here and simply way chose to do is under the facts here that there was no reason and though and of course the court has to give some justification for what it's doing is if it had to give no justification then that might be an abuse of discretion but the specific reason provided here is that a feel for it was particularly against an action against in other words duplicative litigation on the same but claims so in instances where the covenant not to sue that executed as is the case here or a party dismisses with prejudice courts generally do not impose that's exactly the case here there's no indication by air where that they can't they don't contest the sufficiency the company not sue at all and so as opposed to the gold lower case that they cite where there was an indication issues is entitled to full great deference they don't argue any error of law here only that the court abused its discretion to deciding the issue they thankfully say we disagree with how the court weigh the issues that's not an abuse of discretion made specific findings on that that the claims were not frivolous nor was the pursuit of them fixations for intended to harass the court considered all of the arguments and evidence submitted by both sides which was set forth in we submit there the production of technical or manufacturing documents was virtually nonexistent in this case we had to go to the court to because they refused to tell us the documents they were relying on and then even under ninth and they've never shown where the very or if you can look at every chart with a look at every piece of paper they've never identified the actual structure that's going to be a very today him saying it's the outer ring is interesting but it's never been said until  today and so it's just it really is that they never had a bible in print there on that a couple two others let you look at the big decline construction order you still need to have something the court even said you need to have something that couple of the very are to the carrier that is why there never identified a barrier on this one of these products as to the document we did we refused to identify which documents we're relying on but implicit in that is not provided the documents and so i don't know why we reimbursement of fees and coming not to sue the court was very clear to say there's still a real injury and that's what the purpose of the ninth circuit's rule is the ninth circuit's rule if you look at those cases stevedoring and make westlands very clear in saying our purpose isn't just to say future litigation our purpose is to look at the fees incurred in defending this action to make sure that there is if if it seems fair reimburse the defendant we should so the