issue in this appeal are one whether under patent to each of the four interrelated companies that are collectively responsible for the victoria's secret lifestyle brand had a regular and established place of business for interlaced companies are st l brands if the parent company of that operate a business using company owned stores and provide extensive input on the operations of the retail stores nd victoria's secret victoria's secret brand it creates all sorts of dice sold in the retail stores and is responsible for the brand strategy implementation and management in the retail stores and for victoria secret stores operate the retail stores the district court found that he was proper in the eastern district of texas as a victoria's secret store and so that that company is not at issue in this appeal the regular and established place  these four interrelated companies is every victoria's secret brick and mortar store in the eastern district of texas for example the brick and mortar stores in plano and in st go and victoria's secret associates who work at those brick and mortar stores in the district are agents of each of these interrelated companies investing business of each of these companies at the physical retail stores as contemplated by kugel who controls who controls the relationship between the employees and working at the one of these companies do and i'll start with victoria's secret direct and how it controls the sales associates at the brick and mortar stores victoria's secret direct in store customers have the ability to purchase by its or customers can approach the sales associates to purchase merchandise sold online and they place that order with the in store so see it at their point of sale device because that controlling the process of how those sales associates in the process those orders of online merchandise and how those returns can transpire at such direct has control over the sale the l branches involved in the hiring process and it's not clear who who grant the hiring force alone as a store manager just as she was involved she conducted this relate to physical presence in the district the physical presence is the brick and mortar store it is there are sales associates who work at the brick and mortar store those sales associates act as agents or else brands or victoria's secret direct and for victoria's secret brands in the district conducting their business in the physical retail stores for example  to think about but there's testimony from the store manager about all of this use the internet site and and returns and the like you have any evidence showing that the  web company direct has policies directing the stores to do this that it's a requirement for this or anything showing that the stores are required to use the website like this or if it's just the merchandise well i get up at that that argument goes too far if that was the case than any regular consumer out there using this would be acting as an agent and that clearly is not the case so i  want something more than that than just their view that this direct and that he is in charge of the website of course it is is there something from direct telling the store's subsidiary that they have to  internet for returns for sales if there's not items in store in all of that is there a policy in place you can put anywhere put me to anywhere that shows direct some kind  more than direct control of the website they control all sales affiliated or six different online merchandise and so when for example i'm a customer in sport talking to the in because that's all still bottom up from the store and associate and then deciding to use the website to help out their customers i don't know whether that's just directions from the store into d c and good customer service because clearly it is or if there's some kind of official policy from the website and directing the stores that they should think will orders when they have no in store stock through the website or places the order directly with the secret direct secret direct fills that order before a cigarette receives the revenue from that order because those so i've been basically you're asking me to draw from that all that that there's a policy directive to tell the stores to use the to go through the internet is a separate yes your honor is a separate interface directly with victoria's secret direct from the associate and because direct exclusively controls the purchasing of online merchandise we believe that direct is controlling those in stores associates and how those direct sales take place and then subsequently how those returns but you didn't come up and it seems to me that there was fairly extensive in you discover you didn't come up with anything more specific from direct or from the store's different business and he's talking about this kind of policy in any kind of specific detail you have this one point that they use a separate interface and you want me to draw is in control of those sales this is my question here is is it controlling that is is controlling the sil's associates yes your honor is there a bright line between i'm talking about the sales associates the sales associates are the people in the physical store using that separate interface to place orders of online merchandise those  sell victoria's secret direct secret direct receives the revenue from those heartland our view is that it adds up to the proposition that for a defendant to be subject a venue in a patent case it has to manifest some actual presence in the venue either by incorporating there or by having a physical location there were places employees  agents as to the facts on the record here there are a number of in controvert just uncontroverted facts that are that are relevant to the analysis and i think form a baseline we know that none of the venue to have counsel your time is short and i think you  it was clear what issue at least i was concerned about can you just get to it i think that the internet issue is a little bit difficult because it does think clear that the employees use  direct to order items they also will return items that were order through direct but then it's unclear to me whether that's enough to make an agency or not can you address that yes your honor with respect to let's take the two pieces in order so with respect to sales online st of all there is there is no evidence in the record that direct controls or direct  stores employees to make that sale to refer to the specific discussion about the point of sale yes it is correct that the that the associates the sources see it's have an interface on the point of sale that allows them to place orders with direct but as if we look at the record the point of sale of this is that this is in mr cramer's declaration at appendix  and twenty seven dollars specifically says that stores controls the point of sale so that interface is in fact provided by stores and to the extent of the record says it anything sorry you can go on and there but let me just ask you a hypothetical and i know this isn't in the record but say we have a company why manual coming from l b i and that talks about the relationship between the stores and direct and says store employees shall use this special interface to purchase items that aren't in stock for customers if they request would that change the agency relationship if it was something coming from l b i or even from direct it self explicitly told the brick and mortar store employees that in the event of a stock problem that they should resort to the website i don't think so your honor and for that i would turn to the to the google decision and in this in this instance i would liken the activities of the of the store's employee entering the sale online even if directed and even if there was some company company policy which directed that which i am not aware of it is on the record  of the i s p's employees in the in re group of case who were directed to for example perform certain maintenance tasks on the on the google servers that were located in texas to perform  certain certain other tasks with respect to those and that was a they were they were contractually ordered to do that in that case with a contract with google and that this court found was insufficient to create an agency relationship and i would like the activity of making a purchase on online at a customer's request to that to that i understand i understand your google point but does it make any difference that here we have related companies that are i don't want to use any improper corporate long terms but there are at least related companies all working towards selling similar things whereas and in google it was google versus i think relatively ended penick contractor shouldn't that make a difference there so i don't believe your honor that that as of that in less there is an alter ego situation that the agency analysis changes simply because companies are related to one another and it's my my basic understanding that that that in fact even with respect to employees of corporate subsidiaries there is a presumption in place that they are not agents of a parent or related company unless there is an establishment of an alter ego or otherwise an establishment of an agency relationship so let me ask you one more hypothetical and i don't know whether the facts of this are true or not but just assume they're true suppose you have let's just take walmart as an example and suppose that walmart and wal mart online are run by the same corporate entity and i buy something online that can be picked up in a store is that enough to make the online part of the the company entity subjected to venue anywhere there's a brick and mortar stores the l b i direct are all separate corporate entities and would it make any difference if they would work even if what you were trying to see was the internet portion of the  company i think the answer to your hypothetical would depend on what the you know in the case that you're describing i think now you end up with that that store employee being an employee of of wal mart if they're all the same corporate entity and so that takes you back to the other half of the google analysis and they are now in employees so there is no there's no need to enter into the agency part of the analysis i think i think is the way that i would look at that ok i g it so so i think i was and that's your honour's have any other question on that specific point we were talking about the point of sale i had a question what about the degree of control over the sales associate but what was the magnitude of the control that's being exerted my understanding your honor is that there is no control exerted over sales associates by anyone other than they pull up that that separate platform to do to make place the order and then i can come and pick it up at the store and not only that the employee will carry the package and take it out to me outside of the store  the the customer's home and that's the only way it's done we cannot order online and pick up in stores in in our in the system and in this corporate structure with respect to your question but say you did with that  basically a place where a customer could walk in and make an order and then receive it like a post office or u p s you know location or something like that i don't you know in the end i don't believe that it is just the sales associate if we're asking the question about agency who's being told anything about how to do their jobs they're simply entering a sale and then the and then your hypothetical if the package is received then then they th the customer is able to pick it up that i think that that so i don't believe that that would change the outcome here ok so back to the question of point of sale i want to finish these events of these two points another another point about the the ordering in stores online and the fact that it that it appears there is st of all i will i will acknowledge that there is no direct evidence in the in the record one way or the other as to whether direct a direct stab or whether stores direct up i think the inference we can take both from mr marson alone as testimony is that that's can that's controlled by the how stores employees act is controlled in fact by stores and that's confirmed by mr cramer's declaration which says that all operations with respect to the brick and mortar stores including employees is controlled by by the stores and  but further to that the the employees in stores to make sale who if they do make a sale online in fact stores credits them with with with a with credit against their sales quota right even though stores itself isn't making a sale so it stores that's encouraging them to to do this right stores that's telling them what to do and and remunerating they the employee for doing their job so i think that that suggests that that it is in fact stores who is controlling that relationship we also have the flipside question of accepting returns in stores and and i had asked that  question as well and i also think that that does not in any way support an agency relationship any more than than having someone who works at the you know the local u p s store taking a package and shipping it to someone with support and agency relationship and in fact what we would have what we have here is essentially stores acting like a mailbox so there's no evidence at all in the record direct tells the employees of stores how to pack up and ship anything right and it's not something that they have you know discretion do they receive it if it wasn't part of the store they know they can't do anything with it because the products that were purchased online have different stock numbers and they're just from a different him and torrie system so they put it in they put it in the they put in a bag and they send it out to mail and that's and that's what they do and i think that's analogous sensually to to any kind of post office worker or you know shipping you know person and in fact would suggest you know if you were to create an agency relationship on that basis we're talking about creating a relationship an agency relationship between anyone who is sending a package with the person to whom they are sending the package and i don't think that that is i don't think that would be the kind of policy that we want nor nor do i think that there is there is support for that creating an agency relationship counselor can i just follow up on that point i mean i think the you know i understand the evidence that you have here on this but what if there was an explicit statement somewhere in either direct or stores policy manual about the precise procedures the store employee should follow when returning in or you know merchandise bought on the internet and that there was a specific direction from direct to store employees that they must accept this and here's how they return it and the like would that change the scenario i know you don't have that evidence here but i'm just you know trying to test the boundaries of this now i understand your and i don't believe it would change a dispositive way but it would be a relevant factor to consider i believe as to whether there is in fact an age the relationship i think there are a number of cases and they are factually heavy about whether the amount of control exerted by one entity or another renders creates an agent principal relationship in this instance i were so if there were a portion in the say training or employee manual for the store employee that had a whole section about giraffes sales and  describe how they're done on direct and then described the store employees roles and it had a number of detail things that they should do not just returns that they could use it to purchase merchandise for their in store customers and that they were supposed to use a special interface all of the that's kind of stuff if it was explicitly in an employee manual part of their training to explain to them the interaction between stores and direct  that would make it a much harder case for you would it not i mean you would make it a i think it would create a more facts that could tilt toward agency i think would depend on who's putting out that manual and who's enforcing the policy but i but i understand i take your point your honor i think that we're starting to move that you're starting to move the facts down the continuum of when do we create an agency relationship and when do we not create an agency relationship and i think that the analysis is usually how much control is being exerted and as we get as we get farther and farther along that line then we get closer and closer to perhaps establishing and agency relationship that i heard my before i did does that answer your question your honor pick right back up we were talking about this element of control and what agency continue i'm looking at l brand as an example once a sales associate is hired for the retail store that controls them with respect to certain of the employees in the stores yes but then she must herself abide by the code of conduct and she is not self policing that's not in the record and so transacted through the sales of online merchandise that's exactly what those in store sales associates are doing when they use that separate interface and abide by the process of facilitating those returns they are conducting victorious direct business in the physical retail stores  are there any other questions i m