there's a way that that may turn out not to be particularly enviable and it may not be in the will hopefully a the fact of nonappearance doesn't work against my cause in the long run certainly that ought to be a case and i take it that it may please the court on many occasions this court has articulated that a case that is baseless were frivolous is one that satisfied the exceptional case standard of section two eighty five more recently in the which table decision last summer the court explained that it is actually only found a case to be exceptional for a prevailing defendant who wins against accusations of infringement where there is both subjective that if they have a case that is objectively baseless  in the alltech decision before that the court wrestled with this subjective comp on it then explain how difficult it is to prove what is in the subjective mind of the party or as counsel and then explain that a case that is manifestly and reasonable and nonetheless pursuit is certainly one from which you can infer there is subjective bad faith in pursuing it and thereafter in some instances the courts or particularly to the standard as being one in which the party plaintiffs knew or should have known that  was unreasonable and pursued in any way clearly the synthesis of these cases makes it clear that not just any case in which the plaintiff loses is one that's going to be exceptional under section two eighty five it require something more than that and and  therefore there is a clearly erroneous standard on review like why certainly if so how do we get over the fine pollutants of the district court in this case it good question and if this were a case in which the subject of composting were infer from the objective baseless ness of the degree of baseless ness of the case below we probably would not have appealed it would be one that probably is best left to the soundest question of the district court judge who was there and sees the evidence and is able to w exactly how baseless it was and what was in the subjective mind of the party plaintiffs in this case though we have something different we have two phases and at least in the second phase of this case we have an instance in which the counsel for the pla literally admitted that it would be baseless to proceed and yet proceed anyway and at least in that second phase of pressing forward from the time that the court found the priority date to be resolved and the case was not dismissed at that point forward here we have no case here on i would say that only because of that i think that it would have been objected we baseless and we could find it to be frivolous either way that the underlying facts make it quite clear that it was objective we baseless but that articulation instance where a party says we're outta here we lose and then and at that moment didn't occur to that party that there was some other evidence that he might rely on later on in the case that's not what happened here if we look at the evidence of experimental use we can see fruitless there was absolutely no chance for that commercial experimental use defense rather to demonstrate that the us keys were not on sale it was conjured up in some way to allow mr nelson to proceed and have something to say in response to the summary judgment motion but it was utterly an objective we baseless in every way so you had pending comp acclaims right we did so if they had dismissed their complaint and you would proceed it with your comp their claims would you consider it would you argue that it would be bad to defend but it would of course if their defense is to conjure up an argument that has no basis in fact or a law then of course it would be in the wedge tail decision as a model for how party should behave in this situation in that situation there was a motion to dismiss coupled with a covenant not the suit which of course divorced the court of jurisdiction swept counterclaims out of flight as well and that's what mr nelson should have done it is certainly part of the argument your honor we asked the court below to declare the entirety of the case exceptional based on the standard but we said in the alternative if you believe that there was some reasonable argument for the priority date and find that not to be frivolous subjectively baseless and so on then at a minimum from that point forward from the moment of that hearing where he said we lose we're out of here and the case was pursued anyway from that point forward we asked with using the alternative measure at that point in time suppose that they had decided that the district court was wrong in the first summary judgment author and they wanted to play at the end of the day taking this court presumably they would have said something in response to your second summary judgment motion such as they make is that you arguments in intend to take it now excepting for the moment which i know you know concede but accepting for the moment that their initial resistance to the first daughter was at least opportunity and we thought what they would do is what we offered for them to do which would say we stipulate that if this priority date is correct this decision is effect then the patent is invalid and so we can put in a position to appeal it at that point in time they could have alternatively simply respond to the summary judgment motion by saying exactly what the court articulated we disagree with the priority date but based on that if that doesn't apply then we have no other argument and it is  tend to challenge it later on we still disagree with that but based on that finding we have to concede that we have no reasonable argument in good faith to say that the patent is not invalid and either one of those avenues would have put the case in position for appeal to deal with just the priority date issue and the ready for patent the issue you think that's the most i think that argument is utterly friend of your honor the the ready for padding argument that was raised below really blends in properly two very different notions under patent law the notion of whether the written description supports the entirety of the claims as opposed to simply one embodiment that's within the scope of the cl and the second notion of whether the invention has been perfected to the point that the inventor knows it works for its intended purpose but it was never any doubt in fact it was admitted that the invention worked for it you could've and i would have expected in most cases would've seen a single summary judgment motion defended by an argument in the alternative along the lines of saying summary judgment should be granted because number one we have prior to date earlier because of the written description argument that was made in the first summary judgment proceeding in this case and two by the way even if you find against us on that there's experimentally if that had been done in this case and they were simply one summary judgment proceeding with those two arguments and assuming again with me that the first argument the the priority date argument was not sanctionable would you the if the experimental use argument had been articulated in the first motion we would still perceive that argument itself to have been frivolous as presented and having to defend against that frivolous argument going to created the same result likewise of course we believe that the priority date argument was baseless for the reasons in the briefing it would have created a little bit more difficult in the effort to segregate the two the two different phases if they were presented and one we don't have that in this case  we don't have that that specific difficulty if in the court's mind there is an appreciable difference between the degree of for volatility of the one argument of the priority date versus the other of the experimental use  in any event we would still think that that second argument was frivolous as resent it and ought not to have been made the evidence being so compelling and overwhelming on that point and that making one  the us argument in the course of a summary judgment motion that contains other for the non frivolous arguments would be enough to require that the district court find that the case is exception these i would submit it is your honor of course it's an academic or hypothetical question here fortunately for me i guess because we did not sure how academic it is i mean it seems to me that the fact that this these arguments were in two different papers doesn't necessarily mean that we ought to read regard them differently from being simply two different arguments made in the same paper occasionally proceed along a certain continuum a timeline for a variety of reasons in this case the issue about the priority date was one that could be made earlier in the course of this coverage based on the record alone it was easy for katie to try to get to that  the case without spending much money we were pretty sure that we would have evidence of the sale but that was stuff that required us to actually conduct discovery and gather documents evidence receipts and so on showing dates that it was actually on sale we didn't have that kind of evidence that early in a phase we believed it to be the case we were pretty sure it would exist but we were trying to resent the shortest motion to get out of the case at the cheapest cost and thought that mr nelson who did have all that information would then one of the priority to resolve dismiss the case of his own accord so that would have required us to stay in the case longer and spend even more money to defend against what we will be was a frivolous case from the get go what were your other did you have other grounds for in the letter the other than the on sale bar if you know a stab the priority date we did in one of those the already that dogs was probably the best case there were others as well that the powder magic case that had that at issue in that case from utah motion for the priority date we were still gathering that case this stuff was you know fifteen twenty years ago and it was difficult to gather who still had a recollection who could testify who had evidence chasing that literally or you had to come up with something th anticipated the some time reference either his own prior use are some other reference that would have anticipated that and given the later prior right that's right your honor at the time of the first motion that we were pretty confident we were going to get all of that evidence inadmissible form though we didn't have it yet and we were hopeful that if we could file that motion first and mr nelson who had most of that in his possession at the time would recognize it after the party that it would resolve and would dismiss the case of his own accord at that point in time in a way that was faster cheaper more efficient that didn't happen one more question at least for me there's a say that in your activism cases your affidavit in that you understood the walk away to be a dismissal without prejudice i e we'll walk away today but we can see tomorrow but your affidavit doesn't say that that's what mr graham i mean you're mr graham that what mr mann said but rather that you understood that i think mr mann says if i recall correctly that the actually was a representation that this would be with prejudice now why shouldn't we accept at least the proposition that the settlement offer was not clearly made without prejudice i mean obviously it's one thing for a defendant not to want to agree to wait without prejudice settlement because they've spent a lot of money and they're not getting a disposition that they can use well with prejudice a different matter altogether what is it in the record here that would give us any basis for saying this was there was an offer but it was without prejudice i see in my times it's merely of a couple of things  one is that there was no specific wording either way he didn't say it was either with prejudice nor did he say it was without prejudice nothing in the record establishes whether it was or was not and mr mann and i both disagree about that but it simply wasn't said more importantly i think other than the with and without prejudice aspect is that there were other strings attached to mr nelson's offer of it came from mr man and the declarations do describe this part both of us i think describe this though not perfectly in sync but in the main aspect we booked this crime and that is that mr nelson's offers to dismiss the case in every instance required that kids who would be for clothes from ever asking the court for an award of attorney's fees we had to give that up and we didn't want to give that part of setting aside with or without prejudice aspect but that sure walk away means no money is changed sense that's pretty clear in that he would be crazy to say well no money changes hands now later that's right so we was not surprised we believe that would put us in a worse position than if they were just file a paper telling the court please dismiss the case give k to a company not to sue and then let us file a motion for fees if we chose to do so but his settlement offer had that string attached plus it as our in our understanding it was also one that was without prejudice on i just re submitted your argument next to number two thousand and nine