being in the position that you did not want to be in other words they were off the hook because they were bound to bring this thing to be that in that circumstance when that's really what all the shouting is about the other the case law that that they well i'd like to bring to bring to the for your another point which is the case not only defended this case based on not infringement and a little bit it also brought up a completely separate permissive counter claim for breach liability they're usually pretty happy i think i think it's a different situation your honor when the defendant raises a permissive counterfeiting a claim that he was that they were not required to bring in this case they could have brought it in any other litigation those are very substantial claims which are totally separate from any of the passages in this case and that litigation consumed a fair amount of the parties time there were six depositions extensive motion for summary judgment and i would also point out that the trial court when it correct in thinking number one i think i am correct i think we look to them all the results are for and in this case we have a circuit as far as i can tell and maybe my colleagues have something different but it doesn't seem what we think is the best call of the competing certain decisions or we do something else well i think that the two cases that have analyzed this in very similar situations where there's a dearth of court of appeals if you look at the weight of authority if you look at the language the stature has some i had wanted to mention one of the point of a losing party and that is if you look at the trial court's decision in this case there really isn't any analysis of the prevailing party issue this court is supposed to review prevailing party under views of discretion but the trial but really never looked at whether the case in validity counterclaims or anything else would that bears examination example the cation should not be found to clue trout graphics physical models videos rentals of machines travel words and that sort of thing those are obviously the big ticket items trial judge said that she found these frontrunner graphics and some of these models to be helpful we don't even know whether the invoices made their way into the trial for the things that the judge found to be helpful so i think there's a real gap in the record on scene on fifteen minutes rest actually it might have only been twelve in terms of the prevailing party and i think the brooks clay case is so clear that i'm not going to spend a lifetime on it covers our situation  except in the context of turning speakers cost but since attorneys fees usually exceed the amount of cost at issue in this type of setting i don't if anything the showing should be more difficult to be a prevailing party  the good prices analogy was was good or the who would be happy if the end result today were the leading everybody where they are and i think that then you have a strong argument on the  how do you argue that those are examples of patients and the developers urging us to follow the approach that was taken in the summer and colors and those would those approaches would seem to lead to the conclusion three number one isn't on the circuit in two in the majority of a circuit judges and even on a panel i understand but i think you can look at it from the standpoint to the extent there is any authority within the district courts in the a circuit they've looked to the seventh circuit and you can also look at it this way or other was there a rational basis for what she did and she looked at the showing that was made she looked at the law that she believed that should apply that she's applied about and certainly this court in construing first service law gave it a narrow interpretation you followed the black's law dictionary definition which was much more limited than the way scuffling for example has look very closely at first service over there is that emerson case that was discussed in depth the district court case there were other cases and one of the parties was arguing well given an expansive definition that's never certain there was some other prior authority or perhaps later two that suggested there was at least a split in the district courts and this court then adopted the narrow reading of the statute in the a circuit i don't think you can analogize as we have been pointed to any district court authority which creates that kind of split or dichotomy there's been an expansive reading so far to the extent that i say to the extent already exists in the eighth circuit and we respectfully submit th dozens of pages of receipts and bills canceled checks and we provided the court with an affidavit from one of our attorneys was an officer court and that showing satisfied the district court i know to the extent there is any policy issues here involving construction the term exam for cation i just like the court to keep in mind that under the modern way that complex cases such as this are tried the need to illustrate all these kinds of drawings and graphs and machines and how her work together and with technological advances over the last years today really is possible and i've seen this first hand it's possible to conduct trials in a much more expedited fashion than it was under the all system where everything was on paper to make sure everybody had copies people were turning with magnifying glasses and looking at things and the ability to have someone there are a software machinery we can show exhibits and you can call out sections and blow them up so everybody can see and everybody in court is on the same age and it happens like this in real time  a documentary now how many of the tribes when asked the question this way was the three thousand three hundred fifty nine dollars and fifty cents attributable entirely to trial boards that were actually use in the hundreds for each side and only a portion of those get admitted into evidence or actually used and what happens during the course trial i would say it's possible we had boards made that were on exhibits that we didn't use were that we just showed electronically but real problem with cases documentary support for the sports bill because you can't tell that smaller but you can't kill on most of these bigger as whether any of this actually made its way to the court or in the truck graphics is a very good example of that there are category after category of charges on the invoice amounting to tens of thousands of dollars and you have no idea whether that was actually something that was used at trial or whether it's something they discarded or whether it's just conversations with attorneys about a question that we should look to the circuit the law on but do you think there is an argument to be made or should we be thinking that this is an issue which comes up in a sufficiently distinctive fashion in patent cases that perhaps we shouldn't be so quick to assume that under our usual we look to circuit law for general procedural questions we look to our law to make our own l questions that relate more directly to the unique situation of patent cases do you think that this is the kind of issue that perhaps we should consider dealing as a about reading large pieces of machinery we're talking about things that probably don't happen all that preclude me outside of patent cases but i suppose in terms of trial boards and the videos and that's our thing we're talking these days about virtually any large commercial at least any large commercial injury or even nuts or perhaps even not so large cases lot of the cases in terms of models at the do with personal injury cases which you know could be altered but that's that's  three one six one thing versus the united states postal service