the framework of patent and trademark cases generally and as a result the district court's decision so it's a new low bar for exceptional case findings under octane fitness in multiple respects  regarding the patent claims the district court's decision stands for the proposition that a party can receive no adverse ruling no sanction no admonitions from the court you can receive a favorable claim construction order on critical claim terms at issue in the case and still be subject to fees simply for subsequently losing and i'm the uk with you on this so last year we and reasonable defendant said yes but they never should have brought it in the st place because it was under reasonable to assert infringement so it can't be that fees can be awarded only on the basis of things that happened in the merits litigation in the sense of you pass the filing of the complaint understood german but i think in this of the pack what do you understand the basis for the district court's warrior the weakness of your piece that weakness in your case right that's correct primary i believe the district court cited to two issues for purposes of its attorney's fees order one was the alleged weakness of the claims based upon the so called red flag warnings that were presented to munchkin in the form of the whiteman and actions prior references those of the same two references that the court's own claim construction order negated that's point one of the district court's attorney's fees order and the issue is not simply that was the district court's claim construction or alternately correct with this court of appeal that on appeal that's not the relevant question because the relevant question for fees is not whether we would have prevailed or not prevail it's simply were we reasonable in asserting the claims and the district court's claim construction order is critical on that point because it validated our position well you understand the other part of the other point at least in terms of the patent claims or the so the so called playtex cups these are alleged prior art physical  samples that were never part of the case this is the this is the we're part can you explain what happened in the fees proceeding with respect to the plate tax cut i can see the analogy that i had in cups or two of them i guess  had in mind in thinking about how this does or does not relate to what happened in firm a life the question i had was did love and care submit a let's call it that time ok so then there was something of a charge great thing i don't mind case in the underlying case that there were charts now those charts were part of the the argument the court didn't address those in any significant way in the issue and in the peta proceeding there was actually separate discovery taken to try to determine when were those cups actually on sale i mean all of these facts were never determined were up in the air were disputed by p r would be consider reached the playtex cups and this decision it found that money was not able to him and its claims for a different reason so if i remember right tell me if i'm wrong the district court made some references to the playtex cups but did not make findings that those playtex cups were something that munchkin was aware of and made it sufficiently clear that y patent claims were invalid that it that the assertion of those claims was exceptionally weak i might write the dischord did not make those findings that's true but then the next question to me is is what did you love and care put in that record make a showing what did you say in response now what the maybe maybe the district court's findings are not enough but then the question we would face is well what do we do send it back for more it where is the included in its order about even as it relied on that issue outside the record there's nothing there's nothing that the district court concluded that would ever tell you that those playtex cups would have been a bar to patent bill in fact during the attorney's fees here  certainly but obviously our position is that there's nothing there's nothing here st of all that was new and i want to reframe here a little bit too because ellen c has admitted that prior art that is closely related to you and th there is that again there's no substitute rulings that the court never addressed those claims other than affirmatively allowing munchkin to assert the claims in its st amended complaint so there's no bad faith in bringing the emotionally compared to any facts that the court reviewed when deciding whether to grant the st amended complaint no year on and as a obviously alan c complained at that time that you shouldn't be allowed to amend your complaint because the mark that you wanted to assert then was already at a mark you have been using it and using for a few years and so therefore you should be allowed to now claim that this is a new mark why didn't you assert it earlier i guess the concern is that you painted a picture that you weren't really using that mark and then you decided to later that ok now you wanted to shift over to this new mark when in fact you had been using the mark and it had been plied to commercial products so it's a bit of a confusing story that you have sure i don't think it's a an issue  of painting a picture that we weren't using the mark we never said anything about the updated mark in our original complaint we simply chose it because at that time the registration didn't mention had was for what's called the original click like logo that's th that's the mark that we pursued in our original claims businesses and marketing departments being what they are the logo tweak the ever so slightly shifted ever so slightly over time and what do you mean by that tweet that over time when they all were in existence as of two thousand and twelve i think the use this is where we were using and this is now where we're going to shift our use right when they shift i don't so you can't really tell me that the companies shift it to using that mart in two thousand and fourteen when in fact it had already been used beginning in two thousand and twelve and interstate commerce and i think i misunderstood you know d i don't little logo the use the applications there was a registration on the original and there was not an application on the nd i think the business decided that they wanted to focus more on the nd mark that they had and that's why the application trail that nd application trail all of these facts regardless all of these facts about the use of the mark when the mark was used whether there was any delay on  our view the whole issue of when reusing a mark and did you know about the updated mark earlier that issue can only possibly really be relevant to the issue of did munchkin delay in d the complaint at that time and so in addition to looking at was there any bad faith with the claims being idle was that there was a misstatement in the motion for leave to have men you know know the idea simply that the court was aware of all these issues resolved that issue in munchkins favor by saying i'm going to allow i don't think there's any prejudice here as a result of any delay and so i'm going to allow you munchkin to amend your complaint and the certainly your view besides the question  rely on the district courts resolving that issue in favor of allowing the claims once the district court allowed those claims affirmatively allow the claims knowing all of the arguments that were on the table when chicken was allowed to eat and  was perfectly reasonable for munchkin to rely upon that decision so where you end up at the end of the day on the train were claims is that munchkin was ultimately penalize and attorney's fees were awarded because it pursued for a short amount of time a claim that the district court expressly allowed it to pursue and in our view that's that's just not simply proper and in fact give some perverse results because  district courts reasoning is really kind of fundamental fundamentally inconsistent and when you look at the patent case in the trademark case in the context of the patent case munchkin had a critical claim construction ruling that negated the primary  for the district court did not make any finding about this i think that's correct your honor i could give you a number of significant differences between the case in between are my clients mark and was that there was no likelihood of confusion i don't know i think the judge saw it as a weak case the judge didn't know the judge saw that they withdrew the original claim then they decided to assert and unregistered mark in their sort of trade dress the but in your view i'm trying to find out what in your view is the basis for awarding fees and trademark you pointed out that in your view not addressed by the district or that there's no claim when they want fees because somebody with through a claim they should never have a sort of this climb well that's a different question but certainly the fact they grew up isn't the basis for awarding fees right i so we can obviously affirm something like that because it sounds like in fact the ruling is premised on the view that any time a party withdraws a claim they're going to get slapped with a face so why doesn't  work i don't argue that any time an illiterate can withdraw as a claim it should be slapped with fees but sometimes that happens and it's because they with a stated a claim that should never have been stated perhaps it wouldn't  or some reason to claim that you've never been made it was a very weak claim is is trade dress different from trademark for purposes of what we are now discussing or with their separate district court  engender a likelihood of confusion in the minds of the consuming public how do we know that they were using it for two years and then they filed the st one complaint but why as a matter of law is two years  insufficient a lot of time to establish secondary meaning to it traitorous of a product is out i believe that most courts have found that two years is much too little time isn't that a fact dependent inquir in this case the district court properly exercised its discretion it was aware of the initial success that munchkin had in the case but and in the feeing motion it became aware of other facts that had not yet come to light and it reviewed the record as it must to determine the totality of the circumstances but never made any findings of the play texas cops the prior or right that is correct it did not make findings on that a what planning's did it made that help face it was concerned essentially with the red flag warnings that the the two pieces of prayer or on which the p t had relied on invalidating the case were quickly located and quickly drawn to the attention of munchkin the no but isn't it clear from the record that under the district court's claim construction their duty status of those two references is invalidated are or was quite uncertain if that claim construction could withstand scrutiny it would certainly call into question so is the award of fees on the patent claim at least partially premised on the view that the district court s markman order was totally a reasonable and totally unreasonable reading of the claims no i do not think that was the case but the whole idea that the patent playing being essentially frivolous is that the claims were so clearly understood that these references would invalidate them but of course the district court read the claims differently that's r so to say that their patent infringement claim was exceptionally weak you have to d conclude that the district courts market order was particularly on reasonable in its conception of the claims i don't i don't have to make that argument although i believe that that is the case what happened here is but if it's it if the claim construction debate is a close question where maybe reasonable minds can differ and certainly we couldn't sit here and say that the patent infringement theory is reasonable could we we can if i may explain when munch consumed us or a sort of their patent claim they knew that we would have the right to go to the peta where the rule of construction for the claims would be brought us reasonable interpretation if you look over the clam construction briefings there was tremendous consternation over the the use of the word shoulder which was introduced at the very very end of prosecution of this and the word shoulder was not explained in the amendment and it was not used anywhere in the pen specification and everybody was trying to figure out what the shoulder is at the pigtail and at the district court munchkin was alleging that there had to be a layered construction that's something that's debatable right and if there isn't going to be finding that the defense instead the i thi o r was frivolous right that is correct there was no finding that problem here is that the munchkin knew that this case is likely to go to the peta and it would rip their receive the broadest reasonable interpretation and that's probably why they oppose the stake they want to continue litigating in the district court to try to get to a judgment before the p t have reached a final written decision under a different interpretation of the claim language and the d p temp said look you don't have a language in these claims to support the argument that you're making and under keck the question is whether this is an exceptional case and the win makes this chris exceptional is that we quickly cited two pieces two or more pieces of prior art that they should have munchkin should have known were going to be a problem for them at the pieta nd oh so they knew that it was going to be a problem is that a basis for awarding the not in itself but there were other other events there was the fact persuasive case and to their complaint they attached photographs of these playtex products and they admit that they knew about the products right and this is true and they never revealed those products to the patent office when important question was is there a platform and an upstanding member that would cause this clerk and that is different we've provided clencher arts which you can see in the appendix around because the case got stayed and you know it later in the fee perceiving did you call attention to that material again and say to the judge here's to the extent that we are asserting a reasonable exceptional weakness based on the playtex cups here is that case we would make to show that with and we just had happened to drop upon it ourselves and said wait wait a minute what about this were loose responders in the room and we want to see those cops so just so i understand this reference to the motion to an invalidity argument based on the playtex cop's right it wasn't the district court reaching a conclusion based on the substance of those invalidity d contentions comparison between what is illustrated in these playtex cups and the limitations and these claims ninety three  issue because of the win rate they should have given no the i thought that the sequence here understand it seemed to me that in considering the totality there were many reasons that the just the magistrate judge believe this was an exceptional case and it had to do with the weakness of those trademark this further prior art which it managed never to tell the patent office despite the fact that these photographs of what was in their possession was dated on  purposes of attorney fees we would just submit respectfully that if if if we're needing to litigate the validity of a patent based upon prior art that was never actually form and that in their view those those playtex cups would invalidate the fat and i believe that was the gist of their argument without submitting any specific discussion that would match the plate text caps on to it or asking for  and incorporated them by reference into the breach but certainly they were talking about the content of the briefing and what was discussed that just wasn't there so we've obviously identified it a number of concerns but theoretically if we were to find that this order for fees is not a formal ball why wouldn't this go back because the district court didn't address certain questions and instead relied on things that you may have been led astray by various examples success rates based on the ta r institution argue your honor would be there's no need for a remain because there's simply nothing in the record that would establish that this is an exceptional case and in order to even get close to that issue you have to go simply too far outside the record what about the trademark infringement claim being allegedly exceptionally weak because of the differences between the two logos i mean i think if if we're at the point of you know after the fact just trying to argue about differences between you know colors or how a mark sounds again we're too far from the record and certainly and we've cited these cases in our brief there have been plenty of cases that have  found that claims are reasonable when the when the marks of issue are a lot further apart than the marks issue here i mean we have marks that have the same exact primary word involved you've got a logo that looks very similar they both have distinctive outside the record and determining the award of courage because there was language instrument court case and say this shouldn't be the case or a new litigation right i mean certainly i'm going to have that a finding of exceptionality should be readily apparent from the record and that you shouldn't have to get into many trials on the merits after the fact in order to get to a finding of exceptionality so i think the