will hear oral argument this morning is number zero five dash one five one zero revolution i wear versus aspects i w kind of another question of cloudiness on jurisdiction the piece of this case that involves alluded to you invalidity that's before the district court current correct it's i don't flurry of these cases in the past two years and i'm sure you're familiar with nystrom and some of our other cases when the when we get a case up here and there is a piece of that case remaining with the district court in the absence of her saying  dismissed without prejudice or granting a fifty four we ship we say go home we're not going to do these cases piecemeal and since your case people piece of it is beef before her and you've got a piece of it coming up here and why is that different from the normal process we would follow it just saying i get the whole case out of there before you come up here with pieces up because the the part of it that remains had not been mooted had not been dismissed as moved right there would have been a nice moment tracks problem up here with your original  peel that's correct try to charlie correct me we do this all the time in fact we've got about sanctioning people who bring up here half judgments because it's a nuisance and a waste of time now isn't quite i mean i don't think you all are in that posture because you came up here with a half of the case the first time around it was legit because the other half a case had been dismissed is moot right correct now the problem you've got now is that you had half the case went back to mandate spread it's in the us district court it's an invalid the issue is just sitting down there and so it is strikes me absolutely no different you've got a half a case up here now there's no fifty four b if you're judge wants court judge and say i mean assuming that there's no jurisdiction here for this one right now because you got a live issue half a case the live downstairs something you school district court judges say judge if what you meant to do was either not work but if she wants to say i just basically meant to treat my own enforceability discussion as though i had  summary judgment motion for of course ability with the consent of the parties and we litigated that and i found a judgment of on enforceability right and then she'd have a peg for a prevailing party to hang know what what's wrong how can you possibly tell us that you have got a final judge chase for purposes of appeal is more it if the if you if you view it jurisdiction in that light is a is a procedural issue and you focus on the procedure procedural posture of the case before the court as it now stands then the court is correct  in our letter we just pointed out that the court had court's jurisdictional authority is broader than the procedural posture that currently exists in the case that that the issue of inequitable conduct was fully litigated and the and properly appealed and if it is bennett if those two appeals have been consolidated the court would have been required to hear that issue but they were just separated by a few months and the timing of it really says our only way i mean it's perfectly clear what happened the trial judge decided that you'd rather go off on invalidity each one off on an and then you have an appeal and you come up here correct and then the lawyers say themselves we love money we'd like to get some attorney fees were prevailing party on invalidity at least you were as a man so somebody pitches the motion for that was kind of the litigation was that on equitable conduct in jordan because it's a it was a curious proceeding because in the briefs both parties in talking about an equitable conduct say the standard view is clear air for the factual component of the act in equable conduct to terminations both both you and mr newcome bemis say that but clear errors the standard of review that follows when there's been a trial and there was no trial here on an equitable conduct it was sort of a what was it was the seem like a sort of a quasars summary judgment proceed i would have thought you'd been jumping up and down and saying summary judgment is w improper it the problem we were presented with is that it's not improper for them to raise the issue neck to neck it will contact in the context of a motion for attorney's fees so that that part of it seemed like the issue should it you're not saying there should have been a trial i would have thought you just said gosh we should have had a trial on this issue fact issues there i believe in our briefs we have said that there should be i mean clearly on the issue of intent there needs to correct and actually all of that occurred after the first case was already on the notice of appeal was already filed and she was divestiture stiction on the summary judgment issue by the time she ruled conduct there there was deposition testimony on one issue relating to her conduct and that was hacked do with whether mr zone in which embody he felt was was there deposition testimony please the court you are on this jurisdictional issue of the state of the record was that judge cooper decided this based on all the summary judgment papers exactly which he did that was all the evidence before and included deposition testimony that included the case there were no affidavit submitted by the inventor it in submit an affidavit or a declaration showing a plausible explanation which you're in a conversation i mean i don't know how they work things out there california in the byplay between the lawyers and judges clerk the judge you made a motion for attorney's fees that's correct you were clearly a prevailing party on the invalid the side of the case because you really want i mean i mean you were van i mean turned out that that's been baking you may later still be ok so you hang your hat there and you say oh by the way we're also entitled to attorney's fees turns to an actual con was there any conversation between you and her clerk or the judge saying judge we understand what you've done is to notwithstanding the docket entry that shows that inventor submitted no new no new affidavits or declarations explaining himself yes there was deposition testimony of the inventor showing their hands and nobody thought once they receive the district court's order granting the attorneys it's not for talk is limited to making the record reflect what the dishes were actually intended to do with the earlier day i as we know of the earlier days she intended to drop kick in for civility in the sea because she dismissed the counterpoint she did but the one thing is clear is that she decided in connection with the attorney's fees motion she decided that an equitable conduct on the merits because what she used was all the summary judgment longer stand want to what do you think she said but i mean if this case went back you both of you would have no trouble going to the judge and sang to the judge not we know you know proton but it would be useful to have a judgment in the record i would imagine if this case went back i know what i still decide right she could still decide that or alternate ground for invalidity was correct but the point is the point is making things are very much in flux whether the computation is correct as of the moment is subject to question me on the on the basic question that judge prose froze to raised in her discussion with mr trojan do you agree that we only have we don't have a final judgment  concern is now that you have back in the district court since the mandates there was no we decided the invalidity issue we vacated and remanded there was no petition for rehearing and the mandate is issued so now the the status of things as i see the district court is that the district court is there with the validity issue back before it i'll say this your honor if the court does not agree with our new approach to a position that's the only position we took in the letter there is no final judgment well i think it will be any any decision that was issued in this case hopefully from this court will number one make a ruling on the jurisdictional issue and will sort of reflect the discussions here today so that there's guidance for the for the court what decision because through no fault of yours obviously you got caught in the situation where you had a case up here action was taken in the district court and then we sent the case back and that sequence of events has put us in the circumstance we're in today so in light of what's happened through no fault of yours at this point i think the panel would say that the best course is for you all to hold off on doing anything more in the district court until we're sure a decision so that we don't we're not in the situation of issuing a decision in this case and at the moment we shew a decision something's happened in the district court do all understand we're saying understood your to perfect the record it might be a little nicer if it's coming from motion to from you of course you have to stand in front of the judge i'm then of course thank you so you're covered now if the district court at some point issues