reason connection with the i p r and it said it did this because the i p r related to validity whereas the district court action was exceptional because of infringement issues and it also can or you can't what the case to say is that you should get your fees that were incurred but for the exceptional conduct no case is ever said that you can't get those fees and as you say seen because it was not optional well it was optional their party moved to stay the action and they then went to the patent office but i don't think that matters because the supreme court in all the authority from this court says that you should be entitled to the freeze that you incurred having to defend an exceptional case that is the authority we the that's the key was this an exceptional case and if it was what did you have to do to defend it i don't think you can conclude that there are some fees that are just off limits this case but for their filing these six teen false allegations in the complaint there would have been a case the the district court said the case with exceptional from the very beginning as they are totally forseeable in today's environment they are part and parcel of district court litigation they were designed to be that and i don't think there is a case i'm aware of recently where in connection with just the court action the parties haven't filed an i p r it is just the record today ok so the rd point i want to make is that neither the court nor am i argue that it was unreasonable for dui to file those ip ours look at the position they're in at that time the chances of getting the or tory answers under oath in depositions and decorations said we had nothing to do with what was going on down in brazil with our subsidiary v a l we didn't take because it's a different a proceeding you can't get attorney's fees for it and as we have said it's been done in the p p g case and has been done and is going on in just a court today i don't understand how you could not case which is cited in p p g and discusses this issue by the supreme court and there are other circuit decisions about this also and you offer us this record for me which is not binding or even particularly persuasive well i can only say i didn't find it and of course counsel for the plaintiff apparently didn't find it either and cited as the authority for denying us our attorneys  haven't studied that i'm not sure if anybody has asked for attorney's fees but as you point out this is what's going on in the real world when people are in civil court district court litigation they file i p r's and i don't know i don't want to the most typical case where people have gone in for attorney's fees and they've gotten exceptional wards and my historical memory which is purely anecdotal it comes from their products stance of infringement allegations and there's been the absence of any investigation with regard to the products being a key to success so that's a standard one the only other one is the one at once things which is a bit different than your normal i p r because you've complaint dismissed and it was dismissed because the court said they did not believe factual allegations and our district court here said that they learned as well that you can't rely upon supposition so what are they do they file the two thousand and fourteen complain whole purpose and it seems to me that there is an a far greater reason to word of three stories in connection with an i p r then there was for connection with the reissue in the courts of the yes or on of the discord would had that discretion in the right circumstances such as where the i p r work or other p t o work substitute for the work that occurred in the in the district court when that happens when there's a substitutes for the district court and validity work but here we have none of that the district court in this discretion determined and reasonably so that the i p r for relevant they did not substitute for that work and even more importantly the faults st on the law octane fitness for choirs the court to consider the totality of the circumstances here the district court refused to consider and to weigh the evidence we obtained post filing showing that da i was involved in the imprinting conduct that post following evidence completely supported the wealth of evidence we had pre filing we all knew we knew that dynamic air was the infringer of our pat complaint with the detail allegations of this complaint not supported by which you and that was the reason you were these do you read it that way also yes or out of the district court based its ruling on only our pre filing conduct and no your honor that does not correct the information we had pre filing repeatedly and consistently pointed to the ai but that's a different question as to whether you could file something plain accusing  what was the basis for making the detailed allegations that the district court found not supported by what you when we when we look at the framework of what we allege in the complaint that district court  sixteen excerpts from the complaint when you actually read the complaint and put them in context it's very clear that what we were alleging was busy has done this for decades d l it was its st foray into this adventure into this assessment of the evidence that's what i was just describing there's also the legal side of it high marks says it's necessarily an abuse of discretion if the court bases its ruling on an erroneous view of the law the law requires under the supreme court's case and octane fitness requires the court to consider the totality of the circumstances we're looking at awarding fees for the entirety of the what a geisha and the district court refused to consider are post filing conduct and are postponing evidence repeatedly showing that da i was involved we recognize our duty to continuously assess our position our pre filing wanted to see thing about that evidence or what did the special master say about that they say we will not consider it filing yes your honor it says that this record said evidence found after filing is not the basis for the court's exceptionality finding and based on that the court said that the technical drawings for the accused systems said this is the design of dynamic here in that's what the technical drawing said the district court said we're not going to consider that because that's a post filing also the district court said that the court bases its exceptionality determination on admitted the subsidiary admitted that it gets its technology from the parent d a i that's a huge admission and it's completely supports the complaint and then post filing the technical drawings for the accused systems said this design of the property of dynamic here and that further supported what we already under cover during our pre filing investigation here the district court found that we did conduct a pre filing investigation and the district court found importantly quote d a i has not pointed to information that emma had or could have reasonably uncovered and it don't appreciate investigation that would have definitively demonstrated their lack of involvement there was nothing more we could have done the district where he said yes you did an investigation there's nothing more you could have done but i'm finding exceptional anyway and the district court did not give credence to the post filing evidence showing that the go and we need to sue we have the right entity is dynamic here which branch is it for a zero is it china is australia is it ain't and we correctly to both think and  when that happened the evidence repeatedly pointed back to it their evidence they provided they provided a declaration about a year into the wood a geisha and saying no d n a is entirely on involved but we knew that was not true it turns out i also discovered post filing that v a i who's proclaiming no involvement was actually supplying components to its subsidiary for the accused products that again t deposition we finally got it after they resisted we got the deposition he answered questions to our satisfaction and ten days waiter we dismissed on our own volition and good faith dismissed the complaint these this is not an exceptional case exceptional court found that we did the district court found that we believed in our allegations and did not act in bad faith and yet with all of this together the district court on that case because this case to be exceptional under highmark this court can reverse neither of two paths one because the court erred in its analysis of octane fitness in the totality of circumstances the district court was obligated to look and see why are you continuing with this suit and the reason we continued with it discretion and that happened here i realize your honor says we're not going to reweigh the evidence but when it's so clear this that's an abuse of discretion the evidence for peta we pointed to d a i when they say was entirely on involved here's who's entirely an involved i b m starbucks starbucks is entirely on involved in this they're claiming they're entirely under hall when yet we had design rowlings saying this is the design of we have admissions by the subsidiary saying we get our designs from the parent we have website information showing that da l is just a sales office when we have all of that put together especially with the district court's findings saying there's nothing more you could have done during pre filing never pointed to something saying that da i was not involved that's sort of finding irreconcilable with the district court's ultimate finding of exceptionality this does not fit in the cases this court has considered before where this court astounded exceptional case i realize the abuse of discretion standard is high but filed an exceptional case we babble look we could not give it dismissed based upon your vote of attorney fees here had absolutely nothing to do with the question  attorneys fees were awarded because they filed an exceptional case all of the attorney's fees came out of that including the attorney's fees for validity in the district court we got those but we didn't get the validity fees in the i p r so that it all came out of the pleading of the exceptional case and but for of doing that we wouldn't have any of those attorney's fees in the district court for validity so it didn't turn on validity really in the real world it turned on the fact that the i p r was in a different venue that that's really the only distinction that exists here he refers to of pre filing investigation there is no evidence of the pre filing investigation that they did we don't know who did it who we talked to what documents they looked out what considered they put in no evidence of a pre filing investigation what they did is they said we did one that's all they did and then they said what about his argument with brains is a legal argument under high mark that failure to of the circumstances approach if you're using to look at what happened post ok the court did look at what happened was filing he was incorrect about that if you look at  and they said that's not persuasive whatsoever now post filing as the court noted though doesn't go to the complaint in the st instance they filed  complaint in the st instance based upon supposedly four things that they knew that were totally unrelated to what they pleaded my uncle used to say about lawyers that had a  inflated and over under served reputation that if they ever if that lawyer ever met his reputation on the street they wouldn't recognise each other if those sixteen allegations ever met the four things they knew on the street they wouldn't have recognised each other they are of a different world and the courts pacifically said there isn't a gaping hole between them so that was why the case was deemed to be exceptional and things that they learned post wyoming really didn't go to wiley file in the st instance but let me comment on the we because your time is on ok yeah let me comment on the its depositions in its declaration as you noted we have benefit of your brief yes out and so i won't go into that but my point is that every time that the ai had a chance to talk about the fact that it wasn't in bold in brazil they did that and when they were looking at both wilding facts which is one drawing take that in the context of everything the d i was telling them about the fact of no involvement in brazil ok we thank you we heard again a proclamation of no involvement we were in during the case that is just simply not true they were coming forward to us and saying we need to dismiss this case because we're entirely under god and yet we had designed drawings showing that this is the design were permitted and did pursue discovery the court granted us motions to compel to make them produce it when we finally got that deposition that i mentioned that told us what was going on ten days later in good faith we dismissed the complaint my finding of exceptionality is based on the pre filing investigation quit talking to me about everything else that is not what octane fitness says to do act in fitness says it's a matter of law the court must consider the the circumstances hi mark by the supreme court says that the court necessarily abuses its just russian if it bases its ruling on erroneous view of the law that's what we have here this court should