Mr. Lawrence, one more way you ready? Good morning, we have pleased the court. Mr. Cousin, you see some of the benefits to be explicitly with prejudice. We ask today to adopt a bright line rule, saying that the government is not to sue. So, please look at the dismissal of the law, actually, we said dismissal without prejudice. And you found more papers at the district court asking for any correction of any kind. Would you have the ability to bring an appeal here, or a little bit, was wrongly or hurt to dismiss without prejudice? No, but that's not this case, Your Honor. The emotion. Your case is, you think there was confusion over whether it was written without prejudice? Absolutely. Well, why didn't you have the same burden to go to the district court then, and so, there's confusion you need to clarify. We did that in a motion for a tennis face
. Now, do you think it's a motion for a tennis face? Absolutely. That's 70 to 72 in the right-hand block. And you can see that for pre-pages in platforms motion for tennis face. We address the issue of this order. Where do you ask the court to write the written sentence? What the court didn't specify the state dismissal was about prejudice. It is already based on the facts and the law. In this case, the dismissal was a brief prejudice, making it an unadjudgment and graph on the prevailing party. So, you indicate that it's your conclusion in the week that this dismissal is with prejudice. You don't tell the court that it's confusion and ask them to correct it. Well, you do actually infer no to it. You should the court not to further clarify it's order to specifically state the dismissal of prejudice
. Now, I thought you said it's your belief that dismissal that he did was already with prejudice. And in footnote 2, you say, only should the court not to specifically state that you're bearing this already true about the order. It could do itself. Well, how is that, and I request asking the court to clarify, you didn't even ask the court to do it. You said, should the court not to it? So, how is that that would satisfy the state to put this properly before it asks? Sure. I think you have to look at the circumstances as a whole. Graph on the states with a very clear order. We're very clear that that order was done. If you'd be in the beginning of the argument, we state that the order doesn't say whether it's worth or without prejudice. The point we're making is a simple one, is that it had to be with prejudice. That's what the case is that I require
. But if it's a third, you know, in fact, you would have had. I'm not sure we didn't make this argument to one by one because, you know, both the fifth and the ninth, so it could have explicitly had that if an order is silent, it is without prejudice. Not that it's with prejudice, but it's both explicitly had that. Of course, it could be increased to my knowledge, we research that it didn't address that exact issue. The birth of fifth and the ninth have said whether an order is silent, it is to be interpreted as without prejudice. So I think you had a legitimate basis to make the argument. The problem is I don't see that you made the argument and preserved it for us on the field. What do you want to be? And I think, first of all, the law is very clear under the double-hears case, that any post-traumatial motion that raises the issue of an order's correctness is a 59-emotion. And the word is the very least that issue is the reverse correctness. Well, again, I think that when you read the three pages where we address this issue, we address it three ways to send it. We indicated, first of all, that there would be no specific type of method without prejudice
. We argued that it should be with prejudice. We argued that it's terribly, that if it's without prejudice, then it would certainly be the profound part of it. And we avoided the correct declination. So, under those circumstances, first we could be about a valid order, then I think that everything would occur to be in a situation to report to tension. You could find a motion asking for clarification, if the order. Well, I think that the attitude, bearing in a footnote a question about the court, not about two or three social strikes, then correct this to make it clear. It doesn't, if you didn't do everything you could have, whether you did enough, this is what we would have argued. Well, we do have the data thing you could have faced with this order. And let's not forget this should be the definition of file motion for correction. Well, why does it require file form a file motion for correction? You can't leave it anything you could have. We do have the right thing under the circumstances, absolutely
. Again, when we look at the fact patterns that are raised prior to this order, essentially in the hand-was a summary of the motion that had not been responded to, a letter was sent to the judge by Jennifer's counsel, followed by an emotionlessness with a pattern that not to serve. In that motion was vague, telling the court that if it was a real third of one motion, you needed to give it a prejudice, it's a second-largest fiction motion, it could be without prejudice, and then giving it a proposal of it. We will never give any opportunity to respond to that motion, a confidant of the process and abuse of discretion. So we received this letter, there is another amount of chance to respond to, we had a motion for attorneys who is T-R, they've been talking about that for a long time in this case. In this department of circumstances, we brought the motion for attorneys fees, gave our best interpretation of that order, as we saw, that it needed to be with prejudice, and that it part of it was with prejudice, and it indicated that it needed to be clarified because we were declared clarified with prejudice. So you never made that motion, nor request a court to clarify it at that broken time. Specifically saying, your honor, your order is vague, doesn't specifically state whether it's with prejudice or with all prejudice, could you please clarify the order, period. Straight up front. We may have been the best shot to the court. More than 100, high sense 2020, but we thought that ended the circumstances that we're playing out all these issues to the court, that they did not state whether it was with prejudice or without prejudice, the terms and the footnote. Well, actually not, again, I'm inviting the court to read the argument on 12-7-1272 as a court, and as I've previously argued, we hit all the issues, we indicated in a very beginning that it did not indicate whether it was with or without prejudice
. We did argue that it should be with prejudice, and that's how it really, because I would be the right player to do in this case. We also need an alternative argument that if it's with prejudice, we still prefer to impart it. We invited the court to clear it up, it's the court's opportunity to do that. And we think that in this case, we're easily assuring the court is a battery that's already had to do. That's what it used to be like to satisfy $15.98, and we did it. Now, we asked the court today to adopt a guideline rule for comments, and I think I mentioned that earlier. Essentially, the government ought to say, return it to an infirmity, must result in a dismissal of a prejudice. And that's a very important issue, because a dismissal of a prejudice gives prevailing party status under a higher rate than the case, and it has been a higher loss by case. The government dismissal about prejudice, and it would also give you a higher rate of party status? I don't think so, we can brief that, but clearly, higher rate of equipment is a case that said that there is a kind of amount to the assume in any dismissal of prejudice, and not give a party, in my case, prevailing party status. So we don't know if this juncture will be a kind of amount to suit along, we'll give prevailing party status
. The fact that the sickle is very clear that if you have a dismissal of prejudice, you've got it. But the issue that has already been added on is whether or not you cut them up to suit along, is sufficient, to get prevailing party status. That issue hasn't been decided. And I do, is that a bright light news is appropriate, because when you look at this dismissal of prejudice in compared to a cut them up to suit, they're saying the same thing. The session you're terminating the last, the case for patent infringement, they're completely consistent, and at least a lot have been followed. Did the law record the side-believer prevailing party? No, it's not a fact, you know, that's the only thing. It's still a case. So before then, we have a maybe decision. Absolutely, we have a cost motion that's still at standard, and the issue that all you need to do is still very much alive. Jove is our believer that it's without prejudice, it's a jurisdiction of dismissal. We are hearing that it's with prejudice, and we are admins, because it's coming out to suit
. The court has never decided that issue. But the government will just wait until the cost motion gets to us on appeal, which I don't know. How are we supposed to decide whether you were prevailing party in the first instance if the law record hasn't done again? Well, we're sure you thought about it. Is the question a fact, right, whether you're prevailing party? Well, a party in this question, a fact, they're not. Yes. But there's no indication. Yes, and if you have for the mixed question. On a mission prevailing party? Yes, but don't let someone as a prevailing party. But I would say according to how you're representing a power of mass that has certain cases. So, the idea is, is that any of my given courts are going to decide that. How can we decide a question that the lower court hasn't, even if it is mixed, well, in fact, we can't decide that when a power of form
. Well, I think the issue is before the court with respect to the motion for attorneys fees and raising this 59 year issue on the court's prevalence of the judgment. So, it's implied like that. There will be the order of this we see in this case needed to be with prejudice. That issue is squarely before this power. But you're asking us to establish a right-wing rule saying that whenever a dismissal is premised upon a covenant not to sue, it automatically becomes with prejudice. Yes, we are. Absolutely. That's a question. The Supreme Court was told it's not to apply bright-mind tests at any of the patent law, right? So, you were telling us to reapply a test here for a review by the Supreme Court? Well, I think there's a strong precedent for this. I think I read a comment as a case that was very close. Well, I read a comment earlier, based on the issue of prejudice
. Yes, the very very very very, the current not to sue is ultimately in a dismissal with prejudice for all. And then that is affirmed by the court. And there is a firm analysis that the current not to sue in a dismissal with prejudice, considering the wrong party status and a right motion for attorneys fees under $2.85. I was going to say it's like three minutes for the body on, so I'll make you. Hot-soft. By the way, you think we should have a red line test? For the reason for one, this court is held at the issue of whether a dismissal is written without prejudice is a model committed to the regional circuit courts. So, by definition, I don't think this court could certainly have paneled this court could not hold either times a model for the federal circuit to resolve as a national issue. Have we ever resumed that before? That's for Martin Shad. So, the case is resigned in our brief pages of the three of me. I'm sorry. How do you quit this deal with a little bit of a slightly different issue? In other words, does a dismissal, a 41-A, a dismissal where the court says it is with prejudice affect the ability of a court to go into the Bicana analysis that the Supreme Court went into in terms of a number of fees? That's a question of, in my view, that's a question of interpretation of Section 285, not a question of interpretation of the effect of a judgment, which is something that comes up in cases that are not in patents all the time. But a company not to sue. I mean, when you're not a company not to sue, then you ask the court to issue a dismissal. Why isn't it presumed that that's a 41-A, a two voluntary dismissal by the plaintiff's request? Why isn't it presumed that dismissals with prejudice? And otherwise, if you say that dismissals without prejudice, then why don't they want to see if there's still a case of controversy? Well, as I read this Court style, Jones opinion, for example, wrote the court is saying it is a company not to sue it is affecting the subject of my jurisdiction of court. And to me, that's invocating real 12-B1 in the first instance. That's the most logical rule to go to. When there's subject-matter jurisdiction called in the question, that's the first place I would look at it is real 12, not real 41. Subject matter jurisdiction isn't completely called in the question. The court can still decide the attorney's fees motions, the cost motions, it's not like your entrance of the covenant not to sue everything in the district court to act in this proceeding. I think that's true generally. I think when you have jurisdiction, whether you have movements or standing, or right, or whatever the constitutional issue is, the district court is not stripped of its ability to look at in the issue in the case
. How do you quit this deal with a little bit of a slightly different issue? In other words, does a dismissal, a 41-A, a dismissal where the court says it is with prejudice affect the ability of a court to go into the Bicana analysis that the Supreme Court went into in terms of a number of fees? That's a question of, in my view, that's a question of interpretation of Section 285, not a question of interpretation of the effect of a judgment, which is something that comes up in cases that are not in patents all the time. But a company not to sue. I mean, when you're not a company not to sue, then you ask the court to issue a dismissal. Why isn't it presumed that that's a 41-A, a two voluntary dismissal by the plaintiff's request? Why isn't it presumed that dismissals with prejudice? And otherwise, if you say that dismissals without prejudice, then why don't they want to see if there's still a case of controversy? Well, as I read this Court style, Jones opinion, for example, wrote the court is saying it is a company not to sue it is affecting the subject of my jurisdiction of court. And to me, that's invocating real 12-B1 in the first instance. That's the most logical rule to go to. When there's subject-matter jurisdiction called in the question, that's the first place I would look at it is real 12, not real 41. Subject matter jurisdiction isn't completely called in the question. The court can still decide the attorney's fees motions, the cost motions, it's not like your entrance of the covenant not to sue everything in the district court to act in this proceeding. I think that's true generally. I think when you have jurisdiction, whether you have movements or standing, or right, or whatever the constitutional issue is, the district court is not stripped of its ability to look at in the issue in the case. Here's my follow-up in this case. Suppose district courts move both know that in the district court issues acclaim construction order, 9 times 10 to 10 it decides infringement. It may not be in the context of assembly judgment, it may not decide infringement, but the parties will go back and I know who's going to win at the end of the day. Because most of the time, the federal construction is dispositive. So, suppose the district court issues acclaim construction order, it is not crystal clear that your party is going to prevail. And so, the other side, quickly in advance of your summer judgment says, well, I'll give you a covenant not to sue. She dragged your client through the mud, made you go through the client construction mark from here, which had been very expensive for them. You can reveal it's clear that you were going to win under the client construction, maybe as a person could have concluded to the contrary, they probably would have even been admitted or stipulated to it and let it come up to us. You see my facts. I'm troubled by the notion that in that context, a covenant not to sue could deprive them of prevailing party status under your presumption that it should be worth under 41 AB2. Whatever
. Here's my follow-up in this case. Suppose district courts move both know that in the district court issues acclaim construction order, 9 times 10 to 10 it decides infringement. It may not be in the context of assembly judgment, it may not decide infringement, but the parties will go back and I know who's going to win at the end of the day. Because most of the time, the federal construction is dispositive. So, suppose the district court issues acclaim construction order, it is not crystal clear that your party is going to prevail. And so, the other side, quickly in advance of your summer judgment says, well, I'll give you a covenant not to sue. She dragged your client through the mud, made you go through the client construction mark from here, which had been very expensive for them. You can reveal it's clear that you were going to win under the client construction, maybe as a person could have concluded to the contrary, they probably would have even been admitted or stipulated to it and let it come up to us. You see my facts. I'm troubled by the notion that in that context, a covenant not to sue could deprive them of prevailing party status under your presumption that it should be worth under 41 AB2. Whatever. You know what I'm saying? It's an exaggeration. So, I'm troubled by that. And what do you think we ought to deal with that? I don't think we've argued that a covenant not to sue per se strips the court of its ability to look at prevailing party status. That's not the other we've never said, for example, that the issue of fees or costs for a was dispositive or whether it was worth or without prejudice. I think you have to look at the underlying nature of a dismissal. And I think, of course, this court certainly has encouraged covenants not to sue. Parties may decide for whatever reason they don't want to continue in the litigation. We should have mechanisms that have really influenced me just a bit of this or something like that. I mean, there could be lots of reasons that don't have some subjective negative implications to them. It does not automatically make them a prevailing party though. With other reasons, you back out of the litigation, you backed out out and you promised that you won't sue them again, you drive the media court, you didn't go that far
. You know what I'm saying? It's an exaggeration. So, I'm troubled by that. And what do you think we ought to deal with that? I don't think we've argued that a covenant not to sue per se strips the court of its ability to look at prevailing party status. That's not the other we've never said, for example, that the issue of fees or costs for a was dispositive or whether it was worth or without prejudice. I think you have to look at the underlying nature of a dismissal. And I think, of course, this court certainly has encouraged covenants not to sue. Parties may decide for whatever reason they don't want to continue in the litigation. We should have mechanisms that have really influenced me just a bit of this or something like that. I mean, there could be lots of reasons that don't have some subjective negative implications to them. It does not automatically make them a prevailing party though. With other reasons, you back out of the litigation, you backed out out and you promised that you won't sue them again, you drive the media court, you didn't go that far. And then you gave up and you surrendered. Why doesn't that make you the loser and then the winner? But the winner is also exceptional case requirements as well. And it's not just prevailing party. And, in fact, the covenants are great examples. Case requirements are yet another reason you might be entitled to fees, but it doesn't focus on the one reason we'll decide on now, which is why aren't they automatically the winner and you the loser simply by virtue of the covenant not to sue the evaporation. Because I think you have to look at the underlying issues at play. Covenants, as I suppose we said, is a very example because lots of claim instructions made by district courts get overturned on appeal. And, apparently, they decide, well, I could fight this all year for an appeal and I might win. I might lose. You know, there's a decent shot out of the way. I think you have to look at what the nature of the claim construction fight is
. And then you gave up and you surrendered. Why doesn't that make you the loser and then the winner? But the winner is also exceptional case requirements as well. And it's not just prevailing party. And, in fact, the covenants are great examples. Case requirements are yet another reason you might be entitled to fees, but it doesn't focus on the one reason we'll decide on now, which is why aren't they automatically the winner and you the loser simply by virtue of the covenant not to sue the evaporation. Because I think you have to look at the underlying issues at play. Covenants, as I suppose we said, is a very example because lots of claim instructions made by district courts get overturned on appeal. And, apparently, they decide, well, I could fight this all year for an appeal and I might win. I might lose. You know, there's a decent shot out of the way. I think you have to look at what the nature of the claim construction fight is. In fact, look at the reason we listen to this dispute here, in this case, for example, there's a simple vehicle for graph on behalf of all of these arguments about the fullness must be alleged fullness of our case adjudicate simply following the tourist fees motion all time. They waited too late. That's why we're here. Had they done that, we wouldn't be having this debate. The district court judge would have had his opportunity to evaluate their arguments about how we cut out strong our case res and that would have been adjudicated. Well, that's not what happened. They waited too long. They missed the deadline. And they filed a paper outside the time frame for doing it. A very clear time frame for the rules and an issue on which computations is frankly quite simple. And, you know, we really didn't see here how these academic debates about how strong our case was
. In fact, look at the reason we listen to this dispute here, in this case, for example, there's a simple vehicle for graph on behalf of all of these arguments about the fullness must be alleged fullness of our case adjudicate simply following the tourist fees motion all time. They waited too late. That's why we're here. Had they done that, we wouldn't be having this debate. The district court judge would have had his opportunity to evaluate their arguments about how we cut out strong our case res and that would have been adjudicated. Well, that's not what happened. They waited too long. They missed the deadline. And they filed a paper outside the time frame for doing it. A very clear time frame for the rules and an issue on which computations is frankly quite simple. And, you know, we really didn't see here how these academic debates about how strong our case was. The district court had its opportunity to say, you know what, this was a close case or this wasn't a close case. I'm going to decide to give it a very, very unquadrant amount of money and then I'll decide that I'm going to read fees or not. So because of all the issues of government want to sue doesn't keep so far. I mean, I'm headed for a fees, a fees award. There's lots of reasons why parties would do it. So, if the court has no reason left with the district court to say it right now except for the cost. That's it. You know, the district they pay time to file an application for costs in the amount of about $8,000. That's the issue that's left before the district court. If you are a second of your questions, I have to refer to that. So, a few brief of that points
. The district court had its opportunity to say, you know what, this was a close case or this wasn't a close case. I'm going to decide to give it a very, very unquadrant amount of money and then I'll decide that I'm going to read fees or not. So because of all the issues of government want to sue doesn't keep so far. I mean, I'm headed for a fees, a fees award. There's lots of reasons why parties would do it. So, if the court has no reason left with the district court to say it right now except for the cost. That's it. You know, the district they pay time to file an application for costs in the amount of about $8,000. That's the issue that's left before the district court. If you are a second of your questions, I have to refer to that. So, a few brief of that points. You know, I'm just going back to your quick, going back to your point, considering the pre-going party issues that being aligned with respect to the cost. We really have to prepare for the court is some of the definition. And the way it's raised is this needs to be a dismissal with prejudice. Obviously, if the court does that, then there will be a prolonged party. But let's be low and what's before the court are distinct right now on that issue. If, in fact, the court did apply for a circuit law, it's certainly needs to be a dismissal with prejudice and the court abuses discretion. Not making a prejudice, even in the first circuit law. The moral case that you cite evaluates fifth actors and the court, but on a few of them earlier. First is that graphite inquiry great expense. This case was seriously advanced. We've just on a cast, but marking it on some regregion, experts, lots of depositions
. You know, I'm just going back to your quick, going back to your point, considering the pre-going party issues that being aligned with respect to the cost. We really have to prepare for the court is some of the definition. And the way it's raised is this needs to be a dismissal with prejudice. Obviously, if the court does that, then there will be a prolonged party. But let's be low and what's before the court are distinct right now on that issue. If, in fact, the court did apply for a circuit law, it's certainly needs to be a dismissal with prejudice and the court abuses discretion. Not making a prejudice, even in the first circuit law. The moral case that you cite evaluates fifth actors and the court, but on a few of them earlier. First is that graphite inquiry great expense. This case was seriously advanced. We've just on a cast, but marking it on some regregion, experts, lots of depositions. The case was in a late stage. The cover can write in the litigation. On the age of complaint in this case is that it has made an advance ban before they filed the shot, then case. They should have known that there was an unfriendly file. That is not the basis for the motion for attorneys. So that can be written in the litigation in june of the delay. If you just can't ignore the cover not the suit, even the first circuit would have to consider that as an issue. Clearly, focusing on with that cover and the compass and re-recording in terms of the stage of litigation, a dismissal with prejudice is required. One last point. My comment indicates that the reason we hear this is because the motion was filed at the commission for attorneys. Actually, we hear because they thought that if the court had allowed us to file an opposition to the court, the police order and the motion, we had seen the evidence that I'm making here today
. The case was in a late stage. The cover can write in the litigation. On the age of complaint in this case is that it has made an advance ban before they filed the shot, then case. They should have known that there was an unfriendly file. That is not the basis for the motion for attorneys. So that can be written in the litigation in june of the delay. If you just can't ignore the cover not the suit, even the first circuit would have to consider that as an issue. Clearly, focusing on with that cover and the compass and re-recording in terms of the stage of litigation, a dismissal with prejudice is required. One last point. My comment indicates that the reason we hear this is because the motion was filed at the commission for attorneys. Actually, we hear because they thought that if the court had allowed us to file an opposition to the court, the police order and the motion, we had seen the evidence that I'm making here today. We have been made and we have not been here. This case could not be before this court. Thank you. Case is submitted. All rights. The court has adjourned tomorrow morning at 10 o'clock in the evening.
Mr. Lawrence, one more way you ready? Good morning, we have pleased the court. Mr. Cousin, you see some of the benefits to be explicitly with prejudice. We ask today to adopt a bright line rule, saying that the government is not to sue. So, please look at the dismissal of the law, actually, we said dismissal without prejudice. And you found more papers at the district court asking for any correction of any kind. Would you have the ability to bring an appeal here, or a little bit, was wrongly or hurt to dismiss without prejudice? No, but that's not this case, Your Honor. The emotion. Your case is, you think there was confusion over whether it was written without prejudice? Absolutely. Well, why didn't you have the same burden to go to the district court then, and so, there's confusion you need to clarify. We did that in a motion for a tennis face. Now, do you think it's a motion for a tennis face? Absolutely. That's 70 to 72 in the right-hand block. And you can see that for pre-pages in platforms motion for tennis face. We address the issue of this order. Where do you ask the court to write the written sentence? What the court didn't specify the state dismissal was about prejudice. It is already based on the facts and the law. In this case, the dismissal was a brief prejudice, making it an unadjudgment and graph on the prevailing party. So, you indicate that it's your conclusion in the week that this dismissal is with prejudice. You don't tell the court that it's confusion and ask them to correct it. Well, you do actually infer no to it. You should the court not to further clarify it's order to specifically state the dismissal of prejudice. Now, I thought you said it's your belief that dismissal that he did was already with prejudice. And in footnote 2, you say, only should the court not to specifically state that you're bearing this already true about the order. It could do itself. Well, how is that, and I request asking the court to clarify, you didn't even ask the court to do it. You said, should the court not to it? So, how is that that would satisfy the state to put this properly before it asks? Sure. I think you have to look at the circumstances as a whole. Graph on the states with a very clear order. We're very clear that that order was done. If you'd be in the beginning of the argument, we state that the order doesn't say whether it's worth or without prejudice. The point we're making is a simple one, is that it had to be with prejudice. That's what the case is that I require. But if it's a third, you know, in fact, you would have had. I'm not sure we didn't make this argument to one by one because, you know, both the fifth and the ninth, so it could have explicitly had that if an order is silent, it is without prejudice. Not that it's with prejudice, but it's both explicitly had that. Of course, it could be increased to my knowledge, we research that it didn't address that exact issue. The birth of fifth and the ninth have said whether an order is silent, it is to be interpreted as without prejudice. So I think you had a legitimate basis to make the argument. The problem is I don't see that you made the argument and preserved it for us on the field. What do you want to be? And I think, first of all, the law is very clear under the double-hears case, that any post-traumatial motion that raises the issue of an order's correctness is a 59-emotion. And the word is the very least that issue is the reverse correctness. Well, again, I think that when you read the three pages where we address this issue, we address it three ways to send it. We indicated, first of all, that there would be no specific type of method without prejudice. We argued that it should be with prejudice. We argued that it's terribly, that if it's without prejudice, then it would certainly be the profound part of it. And we avoided the correct declination. So, under those circumstances, first we could be about a valid order, then I think that everything would occur to be in a situation to report to tension. You could find a motion asking for clarification, if the order. Well, I think that the attitude, bearing in a footnote a question about the court, not about two or three social strikes, then correct this to make it clear. It doesn't, if you didn't do everything you could have, whether you did enough, this is what we would have argued. Well, we do have the data thing you could have faced with this order. And let's not forget this should be the definition of file motion for correction. Well, why does it require file form a file motion for correction? You can't leave it anything you could have. We do have the right thing under the circumstances, absolutely. Again, when we look at the fact patterns that are raised prior to this order, essentially in the hand-was a summary of the motion that had not been responded to, a letter was sent to the judge by Jennifer's counsel, followed by an emotionlessness with a pattern that not to serve. In that motion was vague, telling the court that if it was a real third of one motion, you needed to give it a prejudice, it's a second-largest fiction motion, it could be without prejudice, and then giving it a proposal of it. We will never give any opportunity to respond to that motion, a confidant of the process and abuse of discretion. So we received this letter, there is another amount of chance to respond to, we had a motion for attorneys who is T-R, they've been talking about that for a long time in this case. In this department of circumstances, we brought the motion for attorneys fees, gave our best interpretation of that order, as we saw, that it needed to be with prejudice, and that it part of it was with prejudice, and it indicated that it needed to be clarified because we were declared clarified with prejudice. So you never made that motion, nor request a court to clarify it at that broken time. Specifically saying, your honor, your order is vague, doesn't specifically state whether it's with prejudice or with all prejudice, could you please clarify the order, period. Straight up front. We may have been the best shot to the court. More than 100, high sense 2020, but we thought that ended the circumstances that we're playing out all these issues to the court, that they did not state whether it was with prejudice or without prejudice, the terms and the footnote. Well, actually not, again, I'm inviting the court to read the argument on 12-7-1272 as a court, and as I've previously argued, we hit all the issues, we indicated in a very beginning that it did not indicate whether it was with or without prejudice. We did argue that it should be with prejudice, and that's how it really, because I would be the right player to do in this case. We also need an alternative argument that if it's with prejudice, we still prefer to impart it. We invited the court to clear it up, it's the court's opportunity to do that. And we think that in this case, we're easily assuring the court is a battery that's already had to do. That's what it used to be like to satisfy $15.98, and we did it. Now, we asked the court today to adopt a guideline rule for comments, and I think I mentioned that earlier. Essentially, the government ought to say, return it to an infirmity, must result in a dismissal of a prejudice. And that's a very important issue, because a dismissal of a prejudice gives prevailing party status under a higher rate than the case, and it has been a higher loss by case. The government dismissal about prejudice, and it would also give you a higher rate of party status? I don't think so, we can brief that, but clearly, higher rate of equipment is a case that said that there is a kind of amount to the assume in any dismissal of prejudice, and not give a party, in my case, prevailing party status. So we don't know if this juncture will be a kind of amount to suit along, we'll give prevailing party status. The fact that the sickle is very clear that if you have a dismissal of prejudice, you've got it. But the issue that has already been added on is whether or not you cut them up to suit along, is sufficient, to get prevailing party status. That issue hasn't been decided. And I do, is that a bright light news is appropriate, because when you look at this dismissal of prejudice in compared to a cut them up to suit, they're saying the same thing. The session you're terminating the last, the case for patent infringement, they're completely consistent, and at least a lot have been followed. Did the law record the side-believer prevailing party? No, it's not a fact, you know, that's the only thing. It's still a case. So before then, we have a maybe decision. Absolutely, we have a cost motion that's still at standard, and the issue that all you need to do is still very much alive. Jove is our believer that it's without prejudice, it's a jurisdiction of dismissal. We are hearing that it's with prejudice, and we are admins, because it's coming out to suit. The court has never decided that issue. But the government will just wait until the cost motion gets to us on appeal, which I don't know. How are we supposed to decide whether you were prevailing party in the first instance if the law record hasn't done again? Well, we're sure you thought about it. Is the question a fact, right, whether you're prevailing party? Well, a party in this question, a fact, they're not. Yes. But there's no indication. Yes, and if you have for the mixed question. On a mission prevailing party? Yes, but don't let someone as a prevailing party. But I would say according to how you're representing a power of mass that has certain cases. So, the idea is, is that any of my given courts are going to decide that. How can we decide a question that the lower court hasn't, even if it is mixed, well, in fact, we can't decide that when a power of form. Well, I think the issue is before the court with respect to the motion for attorneys fees and raising this 59 year issue on the court's prevalence of the judgment. So, it's implied like that. There will be the order of this we see in this case needed to be with prejudice. That issue is squarely before this power. But you're asking us to establish a right-wing rule saying that whenever a dismissal is premised upon a covenant not to sue, it automatically becomes with prejudice. Yes, we are. Absolutely. That's a question. The Supreme Court was told it's not to apply bright-mind tests at any of the patent law, right? So, you were telling us to reapply a test here for a review by the Supreme Court? Well, I think there's a strong precedent for this. I think I read a comment as a case that was very close. Well, I read a comment earlier, based on the issue of prejudice. Yes, the very very very very, the current not to sue is ultimately in a dismissal with prejudice for all. And then that is affirmed by the court. And there is a firm analysis that the current not to sue in a dismissal with prejudice, considering the wrong party status and a right motion for attorneys fees under $2.85. I was going to say it's like three minutes for the body on, so I'll make you. Hot-soft. By the way, you think we should have a red line test? For the reason for one, this court is held at the issue of whether a dismissal is written without prejudice is a model committed to the regional circuit courts. So, by definition, I don't think this court could certainly have paneled this court could not hold either times a model for the federal circuit to resolve as a national issue. Have we ever resumed that before? That's for Martin Shad. So, the case is resigned in our brief pages of the three of me. I'm sorry. How do you quit this deal with a little bit of a slightly different issue? In other words, does a dismissal, a 41-A, a dismissal where the court says it is with prejudice affect the ability of a court to go into the Bicana analysis that the Supreme Court went into in terms of a number of fees? That's a question of, in my view, that's a question of interpretation of Section 285, not a question of interpretation of the effect of a judgment, which is something that comes up in cases that are not in patents all the time. But a company not to sue. I mean, when you're not a company not to sue, then you ask the court to issue a dismissal. Why isn't it presumed that that's a 41-A, a two voluntary dismissal by the plaintiff's request? Why isn't it presumed that dismissals with prejudice? And otherwise, if you say that dismissals without prejudice, then why don't they want to see if there's still a case of controversy? Well, as I read this Court style, Jones opinion, for example, wrote the court is saying it is a company not to sue it is affecting the subject of my jurisdiction of court. And to me, that's invocating real 12-B1 in the first instance. That's the most logical rule to go to. When there's subject-matter jurisdiction called in the question, that's the first place I would look at it is real 12, not real 41. Subject matter jurisdiction isn't completely called in the question. The court can still decide the attorney's fees motions, the cost motions, it's not like your entrance of the covenant not to sue everything in the district court to act in this proceeding. I think that's true generally. I think when you have jurisdiction, whether you have movements or standing, or right, or whatever the constitutional issue is, the district court is not stripped of its ability to look at in the issue in the case. Here's my follow-up in this case. Suppose district courts move both know that in the district court issues acclaim construction order, 9 times 10 to 10 it decides infringement. It may not be in the context of assembly judgment, it may not decide infringement, but the parties will go back and I know who's going to win at the end of the day. Because most of the time, the federal construction is dispositive. So, suppose the district court issues acclaim construction order, it is not crystal clear that your party is going to prevail. And so, the other side, quickly in advance of your summer judgment says, well, I'll give you a covenant not to sue. She dragged your client through the mud, made you go through the client construction mark from here, which had been very expensive for them. You can reveal it's clear that you were going to win under the client construction, maybe as a person could have concluded to the contrary, they probably would have even been admitted or stipulated to it and let it come up to us. You see my facts. I'm troubled by the notion that in that context, a covenant not to sue could deprive them of prevailing party status under your presumption that it should be worth under 41 AB2. Whatever. You know what I'm saying? It's an exaggeration. So, I'm troubled by that. And what do you think we ought to deal with that? I don't think we've argued that a covenant not to sue per se strips the court of its ability to look at prevailing party status. That's not the other we've never said, for example, that the issue of fees or costs for a was dispositive or whether it was worth or without prejudice. I think you have to look at the underlying nature of a dismissal. And I think, of course, this court certainly has encouraged covenants not to sue. Parties may decide for whatever reason they don't want to continue in the litigation. We should have mechanisms that have really influenced me just a bit of this or something like that. I mean, there could be lots of reasons that don't have some subjective negative implications to them. It does not automatically make them a prevailing party though. With other reasons, you back out of the litigation, you backed out out and you promised that you won't sue them again, you drive the media court, you didn't go that far. And then you gave up and you surrendered. Why doesn't that make you the loser and then the winner? But the winner is also exceptional case requirements as well. And it's not just prevailing party. And, in fact, the covenants are great examples. Case requirements are yet another reason you might be entitled to fees, but it doesn't focus on the one reason we'll decide on now, which is why aren't they automatically the winner and you the loser simply by virtue of the covenant not to sue the evaporation. Because I think you have to look at the underlying issues at play. Covenants, as I suppose we said, is a very example because lots of claim instructions made by district courts get overturned on appeal. And, apparently, they decide, well, I could fight this all year for an appeal and I might win. I might lose. You know, there's a decent shot out of the way. I think you have to look at what the nature of the claim construction fight is. In fact, look at the reason we listen to this dispute here, in this case, for example, there's a simple vehicle for graph on behalf of all of these arguments about the fullness must be alleged fullness of our case adjudicate simply following the tourist fees motion all time. They waited too late. That's why we're here. Had they done that, we wouldn't be having this debate. The district court judge would have had his opportunity to evaluate their arguments about how we cut out strong our case res and that would have been adjudicated. Well, that's not what happened. They waited too long. They missed the deadline. And they filed a paper outside the time frame for doing it. A very clear time frame for the rules and an issue on which computations is frankly quite simple. And, you know, we really didn't see here how these academic debates about how strong our case was. The district court had its opportunity to say, you know what, this was a close case or this wasn't a close case. I'm going to decide to give it a very, very unquadrant amount of money and then I'll decide that I'm going to read fees or not. So because of all the issues of government want to sue doesn't keep so far. I mean, I'm headed for a fees, a fees award. There's lots of reasons why parties would do it. So, if the court has no reason left with the district court to say it right now except for the cost. That's it. You know, the district they pay time to file an application for costs in the amount of about $8,000. That's the issue that's left before the district court. If you are a second of your questions, I have to refer to that. So, a few brief of that points. You know, I'm just going back to your quick, going back to your point, considering the pre-going party issues that being aligned with respect to the cost. We really have to prepare for the court is some of the definition. And the way it's raised is this needs to be a dismissal with prejudice. Obviously, if the court does that, then there will be a prolonged party. But let's be low and what's before the court are distinct right now on that issue. If, in fact, the court did apply for a circuit law, it's certainly needs to be a dismissal with prejudice and the court abuses discretion. Not making a prejudice, even in the first circuit law. The moral case that you cite evaluates fifth actors and the court, but on a few of them earlier. First is that graphite inquiry great expense. This case was seriously advanced. We've just on a cast, but marking it on some regregion, experts, lots of depositions. The case was in a late stage. The cover can write in the litigation. On the age of complaint in this case is that it has made an advance ban before they filed the shot, then case. They should have known that there was an unfriendly file. That is not the basis for the motion for attorneys. So that can be written in the litigation in june of the delay. If you just can't ignore the cover not the suit, even the first circuit would have to consider that as an issue. Clearly, focusing on with that cover and the compass and re-recording in terms of the stage of litigation, a dismissal with prejudice is required. One last point. My comment indicates that the reason we hear this is because the motion was filed at the commission for attorneys. Actually, we hear because they thought that if the court had allowed us to file an opposition to the court, the police order and the motion, we had seen the evidence that I'm making here today. We have been made and we have not been here. This case could not be before this court. Thank you. Case is submitted. All rights. The court has adjourned tomorrow morning at 10 o'clock in the evening