wrangle me today this is a declaratory judgment case that we submit was decided by the district court under the wrong legal standard that we believe is being argued by avery under the wrong legal standard and that under the right legal standard should be reversed and this isn't the case allowed to proceed after madame units no longer necessary to establish that there is a imminent likelihood that a lawsuit w every says that the matter was dropped that was news to us there was no communication to drop the matter three m didn't think the matter was dropped avery never communicated that the matter was dropped is not some little silence of fact of importance basically i think if to paraphrase it it says that the passage of time doesn't cause of the k t in any dispute what causes the dispute to go away is for example the company if three m started making a different product which it did not or if avery came back and said well we changed our mind or we didn't need to say that in the april and may conversation something like that the mere passage of time does not have that effect and only have that effect if you think if we agree with you cases to go back in the court still has a decision to make concerning this question ari i think the discretionary question of whether to exercise jurisdiction so he may is just a couple of casual phone calls a year of silence and any litigation history is different products different pathways never sent the claim charts there's just a lot t situation where we forced the issue call them up out of the blue and said we don't think we in french tell us what you think it's not that sort of situation there were two call it was an accidental if it had been casual or something that hadn't been meant to be said on the second phone call mr sarsi would have said you know what i misspoke in that prior call they make a lot about the fact that in their view that first call with dealing with another matter started with another matter and that this just kind of rolled out of his mouth is suggest usually we have a written record of some kind to this is all airwaves this is all talking one to another sure and i don't i don't think that i don't think the court has said that form transponder function transform that place that the question is what was communicated not how it communicated only if if they were trying to argue that the how is communicated can be quite important if they say you are infringing and we're coming after you that's a little different than saying he i'm out want to take a look at this there's there might be an issue here i don't but i don't think that matters whether they say that the content matters sure whether it's said in a phone call or in a letter does not matter in our except that when we have a letter we can see whether they said you're in trouble or a you might want to take a look but here you don't see that we here with just got things being characterize you have sworn declaration and you have no contemporaneous notes and it's important to look at what are the disputed facts you're because there's a lot of play about disputed facts and undisputed fact one thing i think that this report got right is to recognize that really aren't any speed facts here  the primary one that they bring up in the may in french language ok first of all i don't think that matters because the sports health magic words aren't needed it's held the finding of jurisdiction on less than that but if we look at the actual referee here the declaration of road said that definitely that he set may infringe the notes of road they may infringe in quote the declaration of  it true in this case that the the court didn't really make any fact determinations just took the facts as assumes the facts as as played by three am and on that basis found that there was no d  that doesn't matter because magic words are required plus if you look at the declaration there's not a speed we're willing to admit that that far as he doesn't remember saying that after all he says in his declaration i don't remember road says and backs it up with his e mail balance the look and review and consider everything and text and make those kinds of determinations you could certainly send it back for them to do what i think are points you don't need to the record fully formed and new and if you agree with me that the court didn't do that didn't do correctly right the our point is that we don't need to have extra litigation here just to do that because if you actually look at the record the only form it's in the appendix you can see there's no dispute on the mainframe's point the other one that that gets brought up quite a bit is the confidentiality point and if you look at that start a site says i understood that our conversations and this is twenty two of three of the appendix paragraph eight of his declaration he says i understood our conversations including the conversations in march and april to be covered by the confidentiality agreement the three m identified and you go to paragraph thirty five of the complaint and we talk about the gentlemen's agreement i don't think there's anything in the record what that is but what i understand is they had a conversation walking out of a meeting to say you know let's talk more often our view is that  visit this we're fighting over whether or not you're fighting and you're bringing it all the way to the circuit court i'm a little confused as to the sound business strategy of that the business strategy is that there's no strategy or that the attempt here is to get these questions resolved and get this off of three m back and i think the court has said in previous cases micron the other day they're not on your back they have not said they're not on our back we want to say they're not on our back they said they said that they haven't threatened to sue us and there was no imminent threat of suit that's all they've said so far we can't get them off our back they said it was dropped but they haven't given up any of their rights so they are on our back we are proceeding under threat of lost profits damages now that was something that changed right before the suit was filed at the end of the one year went from royalty to lost profits as it is the cases of record highs were under threat of u now whether we wanted to come up we certainly didn't want to come up here we want to go forward with the suit and we still want to go full so we're not trying to multiply litigation costs at all here we want to get sent back down and go forward to suit the suit we'll i mean you can we have a we have a lot to going against them on retro reflected technology if they don't do they don't have a lawsuit going against us under a reflective technology we don't believe they want to of course there's nothing in the record on that and we think returning to their legal argument you know we rely centrally on san disk and the statement of sand if it says that it's enough if a party can identify a particular patent identify a particular product and the other party  disagree we have all of that here they argue that we haven't shown an injury in fact the injury in fact it's shown mind that those facts right there the treble damages the lost profits damages and so on whether the word injury starts accruing damages like the keep your the morning your honor i heard first of all that the law the wrong legal standard was applied i don't think that's the case to court at the five hundred twelve specifically cited command immune and restated the test that may have been generally described which is facts which under all circumstances show a substantial controversy between the parties having adverse there is no dispute no controversy then why don't you just grant a covenant to your honor as to file a motion to dismiss for lack of jurisdiction we may decide to sue at some point we may not i don't think a decision has been made and we're not supposed to be held to their requests for comment at the sewer specially when it's as broad as they requested all future possible infringement on their off feature possible products having having notified them of the pads and having identified the products in a question isn't is without enough to establish a case of well there's a dispute as to whether there was more as as you recognize your honor essentially this you know there was a factual attack on the pleadings it was traded pretty much more like a racial attack in our current procedural circumstance we must assume the facts a theirs stated by three m and you've got ip councils not just people who don't know what's going on you've got threatened claim charts you've got specific patents numbers you've got products specific products you've got the patents being reviewed shoes which i would perhaps reasonably interpret is spiffing those patents up for litigation which is about to occur  there seems to be a lot more than just a casual conversation well your honor i think you recognize properly that the form of the communication actually doesn't or whether it's a casual conversation or a real threat this court has never found declaratory judgment jurisdiction based fact which was whether the the prior litigations were related so that factual finding was in our favor but i think one thing that's actually telling here if you look at the contemporaneous notes of mr rhodes who claims to have written down what was said as they were occurring thousand and five in those conversations we had and that other litigation we know those are out those cannot form the basis the basics then change but i but the point that i want to get to is the very very last thing that as long as it's a phone call i can threaten almost as much as i want absolutely not your honor and there are no magic words and i agree you don't have to say you infringe but what this court has said when they said there are no magic words you still have to convey the thought that there is some threat or there is some assertion of rights you don't want to establish a rule which says that parties big big corporations to me never speak about patents are always run the risk any time you identify patent anytime you identify any product you run the risk of being d j this court said that's not single telephone i disagree with that your honor there was one telephone call in which mr start as i said what he believed he said was are you still interested in licensing this patent or he's patents because of communications that  taken place in the past and the response that comes back is actually consistent with the statement we weren't interested then we're not interested now there's no assertion of rights there's nothing like in stand us where it demanded a royalty and said after demanding a royalty ma was a series of escalating phone calls a series of escalating meetings in which they hire experts estie hire experts and actually over many many days did a claim by playing element by element presentation and that situation there was a very concrete assertion of rights for royalty based on a claim that you infringed these patents and here's how you infringement there's nothing here like that and i would i would direct the court there's an older case a primitive new case which is actually very similar to this it's signal versus alva and in that case the reason it's very similar is because the the atom holder informed the alleged infringer that its patents had been reissued and the court in that case said you know when infringement suit that a lot of interaction between the three needs to competitive parties on these types of products i would actually assert there's not that much litigation between them you have to realize that these are two multi multi billion dollar companies with probably hundreds if not thousands of products that compete against each other and one case that we're talking about was filed in two thousand that related to wreck to reflect the shooting but certainly did not reflect relate to these products and these facts weren't even issued at that time so that's not related to the suit was filed on it in fact it actually shows that when when every wants to sue it doesn't wait and does it you know it's to the night after its patent was ten years are passed but the reason the court said that that ten years was not relevant to whether there was an immediate threat of a suit or some immediacy was because in that interim period i had continued to enforce that pattern against the entire industry and many lecherous argument to the fact that they were notified of the pathans starts the clock on damages correct well they were they claim they were notified of the patent not by our informing them but because they were monitoring the now worried about is that reasonable i don't think that's one reason we're going back to the passage of time though the way that that has been applied is whether it shows a controversy of substantial immediacy and there are at communication between the parties and the d j was filed that indicates there is no immediacy no substantial and immediacy of a controversy the same thing in the micron versus masi case even though the court defined d g jurisdiction there it actually looked at the passage of time and said well during that four years there was there were things going on the patent holder was asserting its act against others therefore the passage of time was not relevant but what these cases show is in general it is something minutes there was no discussion in the in the interim argument about the santa sanders what sandusky says is i think very instructive that article three jurisdiction may be met where the that puts the declaratory judgment plaintiff in the position of either pursuing an arguably illegal behavior which is what three m is being forced to do or abandoning that which he claims a right to do which is what the doctors in myriad were forced to do other patent based on certain identified ongoing or planned activity making the d g three e g q product or of another party and where the party contends that it has a right to engage in the accused activity without license mr rhodes clearly did that and article three case a controversy will arise in the party need not risk a suit for infringement by engaging in the identified activity before seeking a declaration with legal rights so we clearly need that standard i believe a lot of the other facts are extraneous we don't know the covenant not to sue is helpful to us we don't need it the other lawsuits are helpful to us we don't need them the fact that these are under reissue are helpful to us we don't need them one extra point that he brought up that mr sarkozy and his conversation brought up the fact of the reissues coming out and so it wasn't just that these three issues were happening just in the abstract and that we'd latched onto that he actually brought that up in the phone call that is on speed it's in the rose declaration and r and the use of the immediacy standard here today shows that both the district court and avery still are working on the wrong standard for immediacy ok immediacy of a lawsuit as rather than immediacy of the dispute that the district court if you look how it identified patents and identified right and so on so you see that there isn't a whole lot that the district court said here to figure out what what its basis was but when you look it's clear that it was focusing on immediacy of the law is the same thing with the argument today district court and the civil lawsuit so it's the immediacy here is of the dispute clearly we have it here they've identified products they've identified the use of the patent to cover those products the passage of time  we are with you on that accrue damages a couple extra points so it's relevant to the one year delay to when they introduce their product which was immediately before the lawsuit or right contemporaneous with the ultimate lawsuit being filed that not only went from  royalties to lost profits damages but it also increased substantially i would submit their ability to try to get an injunction maybe it's not a great chance but once you have it you're not going to get an injunction in the current world if you don't have the product once they have the product that goes goes up so the world didn't change not not only the world not change to the negative in the interim just like in myriad but the world did change to the pot right before the filing so we suggest or we request the court reverse and send back