it seems to me the best place to start is where this lawsuit started and directing the course attention the page one ninety three of the an appendix this is the letter that was sent almost three years ago to my client quite you can see near the bottom of that page it indicates as i t w has become aware that north carolina phone ministries and that's barnhart's trading name in this particular business as a paying florida product approval so and so copies of which are attached both of these approvals require the application of the phillip phone to the joint between the wood rafter in the outer space underside of the roofing decking i t w believes that any application in doing it goes on to say specifically in the next paragraph we are notifying you of the three to seven patent in order to provide in c f i an opportunity to cease or avoid any activities that would infringe debby's rights in this patent and then it goes further to say such activities would include providing more advertising any services which would infringe the claims of a three to seven patent or providing advertising or other information that would induce another party to infringe the claims of the three to seven patent if you have a letter that says they'll never see where is your adverse member we're looking at madame yoon and it says that we're we're going to look at the immediacy and reality to see if there's a real dispute here but you have to have adverse legal interests before we against barnhart as a result of the claims brought against them by i t w and there is authority from this court the dow versus exxon case for that sounds a little speculative to start with but even if that happens and gets through exhaustion and a few other things that strike me as real problems there that still doesn't seem to me that you have an adverse legal interest with them or your honor i think that if you look at the t circumstances test and met him and there are cases involving customs i mean this is not a this is not a new scenario this is not a case in eliot let me see if i can clarify something here that the covenant not to sue does  exhaustion under our are precedents tramp's core why should we be construing this cup and it not to do a sufficient to cover costs the customers as well under the exhaustion the area it seems to me the agreement here the covenant is very much like d w obviously didn't raise it she's asking you why you didn't raise because of the issue simply didn't come up in that context if that's an oversight on my apartment i can live with that but the issue here is the court is the appeal from the decision of the district court in the district court applying met him in said that it simply wasn't sufficient to continue article three jurisdiction notwithstanding the fact that t w has made constant threats against both  barnhart and its customers but has chosen only to cover that its customers the problem practicable roughage approach to suggesting to you is you don't have any problem with respect to your customers if there is exhaustion i understand that order that this case would be appealable there was a there was unfair competition flame that was left which would have required trying that case and then finding out what happened there and then taking an appeal and everything at the same time but you would agree if we find i don't think that's an issue here i think the issue here is whether or not in that issue with all due respect that issue would arise if and when i t w actually salutes one of our hearts customs that would be an issue to be raised by the customer in a more heart revolving case that would be an issue to be raised at that point but as it stands now because barnhart brought this action there haven't been any lawsuits against the customers as far as we know but if we would find due to jurisdiction we would you wouldn't get any objection from our heart because we didn't want this to occur to our judgment action it was clear to us that whatever type of covenant covenant was given or in part extended to the customers that's all that the case is over as far as we're concerned can your customers really the gate the ability question and if so what's the purpose of the first d j action in the first place i don't believe the customers could relate to gay people in their suit independently for infringement i think remember that it's the florida production system the florida product is a specific claim to a specific process these are process claims and i was using that to show that your real harm is economic not legal  respect your honor that i don't first of all i don't remember meeting the saying that their vote has to be both economic and legal or that that is something that appeared most often in the cases before met him but i think that the really issue here is as far as legal harm is the fact that i t w has made it clear that they're not going to give a covenant to the customers and so it's just a matter of time before a customer gets sued if you just saw this that this with resolve the validity issue but under the chief's hypothetical if you agree i think that it would not be solved let it be as to be severe the cost of things right well that would be a question between i t w and the customer and it would be a matter for us if the customer supreme court's view simply didn't make a whole lot of sense and the whole question of economic versus legal harm is is with all due respect somewhat arbitrary as  harnessing and wondering wallabies customers are peeled away because they're getting threatened with lawsuits because they're using a florida approved installation technique that they sponsor i mean this is this is something that barnhar floor and did they proposed to the state of florida a particular way of installing this phone that would meet the required standards for wind resistance and so forth and so on so we have a finite we have a finite process which either the apparatus you know well problem is i'm a district court case not binding on well no it's not binding but your honor is a studied and satisfying opinion i think it merits the court's attention and i think also the ws opinion which is opinion was very well thought out and very reason those cases are not on all fours in this case but they both riposte met immune cases they both addressed the question of what happens when you have a covenant given to in this case and in the synopses case a manufacturer but you leave the customers out there hanging and synopsis there were there was a method patent and there was an apparatus being sold by the declaratory judgment pla thank you let me get right to the heart of it as to let me ask you first before you get does this covenant not to sue cover claims were induced in contributory infringement exactly what i was going to say we say that in our brief we  legal adverse legal interest there are none obviously the flows from the broad scope of our covenant that was made that requirement of adverse legal interest existed before med immune exists after metamucil in these cases in specific they can point to what microchip was before it's quite it trying to find a proper educated that doesn't offend you but this is quite a strategy isn't it you don't you give them the covenant not to sue them so they can't and come after the validity of your patent and then you go after all their customers knowing you'll drive them to your licensees and if you don't drive the licensees you probably won't sue him because you undercut barnhart's business enough anyway so the economic interest here is being perfectly satisfied by not using the courts and suing for infringement all let me answer let me give you some history here first of all if you look at the florida product approvals themselves they're not in the joint appendix but they are in the record they were attached to our hearts some exhibits the barn her top position to our initial motion point the floor product approvals do not dictate the step by step method that would directly infringe the three to seven patent that's why he put likely end there in the course of this investigation we learn what our heart actually does and we give them a covenant however this is not a two competitive market there are numerous competitors and sources for these chemicals to make for mobile polymer he says there are multiple uses in for phone mobile polymer in pieces beyond reinforcing roofs against hurricane force winds it is the customers or the applicators who can source these from folks other than bar harbor other than us that would actually directly infringe the method claims of the three t patent so that's why the i p w will not extend the covenant to customers because we don't want to be in a position where a customer will later say wait a second you gave you gave only when the product can be used to practice the method exclusively and here as nelson clark one of the our heart executive stated in a declaration he submitted to the lower court a lot of not infringing use lots of uses in fact the name of the brand name that barnhart markets it's chemicals under is called insole star would suggest more of an insulation application then a thesis of four reinforcing ropes against hurricane force winds the second reason so so i would submit to you the patents exhaustion does not apply here for that very reason because they're selling not infringing chemicals and so in lots of areas there is customer of the us there is standing as a result of economic injury right and we had i bases in our own court recognizing that economic injury can c soused because of injury to the customer in but there are cases in which the there is a regulation or a statute or something like that which has adversely affects because it affects the the the customers customers who had third party standing why did those cases recognizing standing to sue based on economic injury not apply in the path there why should the pattern there it be different well i can answer that by saying that this court's cases both in microchip and in an attack australia have stated pretty unequivocally that an economic interest alone does not confer an actual case or controversy and and as to the economic injury that is apparently assumed in so far i would say this there is no competent evidence ever produced by barnhart in the trial court that it lost a single customer or single sale because of letters that you sent to a couple of customers two and a half years ago so i would not assume even economic injury in this case and i wanted a larger point here is that the and immediate controversy between parties have an adverse legal interest simply we're talking about a very attenuated set of facts here that would be hypothetical facts i submit to you that this court's decision in dow jones versus a blaze really is very significant on our customer while it's even i think this situation is more attenuated than even the situation in dow jones chief judge former chief j them would that be sufficient no that's still just even under that hypothetical state of facts that still economic alone economic interest alone again the court has said on numerous occasions that to the extent bar her wants to clarify its customers rights under the three to seven patent that is not sufficient to confirm actual case or controversy that is clear in this court's cases when actually those cases micro chip rule isn't reasonable apprehension standard in the absence of indemnification contracts where there still potentially some liability for the customers to go after barnhart there's no d j jurisdiction i'm not going to concede an actual case of controversy in the presence if there were indemnification agreements i want to see them see if there are qualifications conditions what whatever there may be other facts you know that attach to your hypothetical that would give rise to an argument but i would say barnard would have a better argument to sustain a national case or controversy lead to the right under the right circumstances the manufacturer here has a choice either he's going to put himself on the hook for indemnification contracts or he's going to stand the likelihood that he's going to lose all of these customers to a competitor because they're getting these threats have been french and that is that the choice you would put to now it's not a hobson's choice here i think that our hearts conduct and actions a lie that hypothetical what what's the  and to prevent barnhart from being able to do anything about it in court suppose that were the situation here you know you say it isn't but suppose of work that is born who are helpless under those circumstances doesn't identify at least one customers out there saying no i'm not saying that either i'm answering judge dykes question and that is there are many uses of their per their chemicals they are not they're not going to go out of business if and when what you know where you're changing my hypothetical my hypothetical is that the chemical only can be used for this one application in this process you have a covenant not to sue against the manufacturer and then you threaten the customers and you as the manufacturer have any legal remedy under those circumstances absent additional facts under the current case license that there there wouldn't be a case or controversy if you start to introduce other in dish beyond just a pure economic interest interest then perhaps they like i said they would have a better argument but on these facts that we have th again about hypothetical state of facts that are were before the district court are before this court and again that question about how far do we go under madam you know i don't think has been addressed by any court because if you  i would say i think the district court correctly held that the declaratory judgment action is not sustained by the mere possibility that a barn her customer who purchases not infring chemicals from barnhart might seek indemnification from barker if i were to sue that customer in the future for entrenching the method claims of three twenty seven patent and again at this point barnhart in thousand w have no adverse legal interests and i will make this clear by her cannot be sued under a covenant for directly or indirectly infringing the three to seven patent and i want to close by saying this court has stated here there were more than just the possibility i mean any one of us could possibly be charged with infringement at something to date on any pop product why would you know we have threatening letters to the customers of visa v the customers and i t w not our heart tonight you w my point is that it follows that if based on this court's statements starting in super sac amana continuing through bennett tech revolution i wear that statement exist throughout this court's cases in this area and it follows to me it would seem that it follows that a possible future infringement suit against a foreigner custer customer who might seek indemnification on some and identified theory ok i think you would  record in supposing that there's no evidence of injury i suggest you do is look at the joint appendix for example one ninety nine two zero two two eight to ten the privilege log which contains numerous other threats or apparent threats to customers and references to infringement by barnhart and customers all of which was produced during this lawsuit is he right  getting into rule eleven territory if they're saying now that the florida approvals which they made specific reference to and accusing both barnhart and its customers of infringement now can't be interpreted as  saying anything about whether or not there's infringement but remember what the district court judge said the correct approach was you said this to me in open court and he repeated it in the in the briefs judge when he said well the appropriate thing to do m it did not bring this action because it wanted to it brought it because they were confronted with a direct explicit claim of patent infringement and they see it as a as a both an economic in a legal issue and i don't