john one of the original inventors on the patent the force of the poor patent as well as the owner of geotagged map procedure on i'm going to have one primary request here today and that this court reversed the motion to dismi and send it back to the trial court with orders to dismiss and vacate the case because there is no subject matter jurisdiction the second in the alternative if this court finds that there is jurisdiction or request the court reversed summary judgment ruling and send that that whether it's compulsory ruins it doesn't make any difference i do i do agree with that and the reason that if you came up in the truck or the district court used that as one of their basis and made an argument out of permissive vs compulsory so the parties kind of carried that t but i think google argues it doesn't matter if it's purpose of a compulsory we argue doesn't matter i think both sides put in briefing about that issue but at the end the day the counter claim cannot create jurisdictions are sure the entire issue on the jurisdiction comes down to was there a definite and concrete dispute that was real insubstantial between geotagged and google on in march of two thousand and eleven one of the constables you're correct your honor they had sued several customers in texas and that was essentially the basis and that i'll get into the what i believe the seven reasons why this court would not have jurisdiction and why the district court did not have jurisdiction first and foremost there were no affidavits there were no testimony there was nothing in the record to say that on the google side they were concerned that they thought there was a dispute they thought they would get sued none of that what they said is our customers have been sued and we think that creates a dispute number two if you look in the response to the original first motion to dismiss they never argued that they never argued that they thought they would be sued rather the argument at that period of time was jurisdiction should be based on the fact we supply a material component use of suit our customers and they have demanded indemnit a month before that they did turn case they determine fov right after this it involved the same microsoft it's the same allegations it basically started the same way number three my third point is if you look at their original complaint whether we had a dispute they didn't ask for a declaration of non infringement by google they asked whether their customers had infringed or not they asked for non infringement decoration by their code for on behalf of their customers keep in mind these are the proceedings down in texas over the very same patents next on latches my fourth point there was a motion for s is evidence in the record google presented affidavit stating that geotagged never told google that it too might be sued or that geotagged believed it had a claim against google so unlike the normal motion to dismiss you have extra evidence here counter claim presents an independent basis for jurisdiction the court made educated as if it was an original claim and they cite ten cases now in my perspective this is an easy one on the law they are completely wrong on the facts cannot create jurisdiction where none exist at the time of filing it's contrary to the homes homes group vs for not a us supreme court case where that court was deciding whether this court had jurisdiction under twelve ninety five a day in that case the supreme court said they wanted to find uniformity between thirteen thirty eight which governs the district court's jurisdiction and this court twelve ninety five a's jurisdiction and so they looked the holmes court united states print court looked it ok under thirteen thirty eight you can't have a counterclaim in patent create jurisdiction so with that perspective we want to be uniform with the federal circuit so the federal circuit doesn't have jurisdiction in that case jurisdiction your honor the key to the merits discussion and i was not going to get into much of the maersk because i think it's easily decided on the jurisdiction and i want to come back to the jurisdiction in a moment that's  proposition it is not to deal with but but let let me deal with the merits of the issue right now if you look at the whole summary judgment opinion comes down to page sixteen of the summary judgment order to get to this tracing of the linkage is it anywhere in the patent know what's the cut what's the thought process behind that we think it started in the claims construction and then it carried from the claims construction all the way through to the summ didn't i didn't view that opinion that way that we were required to trace up a link which or conduct a second search and i understand the court's point but i think the conclusion that on that page sixteen was you know traceable linkage no i think that's it is the end of the conclusion from you know his analysis but if you look if that is the reason which i believe it is the court said they limited to the claims construction stage limited dynamic replication to automatic inheritance as opposed to inheritance a copy and this is a fair you know because there are three other courts that in terms of the same ter included copy there's nothing replicating of course in our opinion would mean copy second the court at the claims construction state said they limited it to a parent child relationship so once you have a parent child relationship no the court had done that even so once you have a parent child relationship the once you have automatic in here that's what they say is then you have you have to trace of the linkage in order to have done him a cripple case should we thought we believe that's where if and let me very quickly there were a couple points i want to cover i didn't get through in the jurisdiction point and he did the jurisdiction i was going through seven points and if in what if you look at this case when the other prior cases you look at the heiress case in the heiress case you one hundred eighteen page presentation was provided and months and months of negotiation if you don't have anything like that here that's therefore i think i'm going to get sued here's how i would respond to that i think it's completely irrelevant on these facts and here's why there's nothing in the record from anyone at google that said hey i saw they were suing on hammers or i saw they were suing on this and it made me believe there was a dispute i thought there was a dispute there is a dispute there's nothing in the record in the reason that come doesn't come up is because that hammer analogy and that whole issue is part of this fully hosted issue that we fully host everything for example we make the entire game we do all steps if you look at the record and look at the history of that argument it didn't come up in till after summary judgment the words fully posted never appear in the original in two thousand and eleven it comes up three years later after the summary judgment ruling then they start arguing fully hosted i say wait a second person fully hosted in the complaint there's no argument of fully hosted in any of this complaint so then they say will let as i'm in the complaint they then i'm in the complaint they offer no evidence in connection with that issue they simply plead that issue and then the key missing link ok if that's such a big deal then you should have someone from google saying i knew it we fully hosted these customers it concern me it made me think we had a dispute we're trying to figure out there's a real and concrete dispute here you also whether a patent lock counterclaim is permissive or a compulsory federal circuit law because those had claimed specifically but then on the more general question if we do have a counterclaim over which there is an independent basis for jurisdiction because the only claim remaining in the case is geo text counterclaim the most direct way of looking at your wrist action is just to point out that there's unquestionably an independent basis for jurisdiction over the counter claim its claim for damages under the patent jurisdiction of the claims of dr judgment complaint just didn't deal with this counter claim issue at all and the second homes group in footnote four expressly distinguishes the line of cases relying on and making clear that it's not displacing them at all it acknowledge not overrule them it sting wishes them and therefore no court of commentators ever suggested that home stooped over old this old and settled line of authority so when they say that a decision in our favor would be directly contrary to what strong person holmes is the exact it's the same result either way i do think though the fact it's permissive makes this so particularly easy case because given the fact that they chose to pursue this counter crime in this case they didn't have to they chose to pursue it and it shows that even after the original cla all the way through to a summary judgment hearing on the merits at which point they partly figured out as we did which how this was likely going to go it's too late for them then to try to step out of this because there was no jurist allegedly no jurisdiction over different claim case that would be fundamentally unfair to everybody because then the one i mean didn't have to bring this was permissive because the sentence acted different products therefore different actual facts and to regardless even if it had been compulsory though once it's been searching a geographically organized database that entails both a search of a geographic region and dynamic replication of entries from a broader area so the minimum you need to thing is a search and the addition of entries from a broader area and here there's just nothing that even resembles the second of those because instead what google does is to run a single search for all responsive ads without geographic restriction through its entire database and then having gathered that one search that one set of ads it just decides which ones to show there's no addition of entries from some other broader area there isn't even a broader area in terms of judge sauls questions about the context obviously we agree and i is that quote at no point does the accused system do anything more than return results from the defined search area in other words there's nothing beyond returning results from the simple search area there's no else there's no automatic addition and then it gives  in context we think it gives them as examples of that there is no tracing up of last hierarchy of the second search you know that is the the other statements that the judge still wrote about you just have a search against all the q word ids and then a filtering after that so if you read this all the contacts know it's fair to the court what the court is saying is that the key point is that no point is that you system do anything else for the search area those two points the jurisdiction of counter claim and the actual basis for the about the theory for based on based on direct infringement and that's exactly the point in the first year of google's customers i mean a new many many many customers are being sued in these taxes some of their their customers for some of them those are hosted customers by google google itself on its servers has all of the relevant question only for the customers of the actually the customer's alleged engaging and in the suits google itself actually engaged in all of them that makes  actions for which they're being sued and in terms of so that's the whole it's even stronger than the home depot analogy because it's as if it is in home depot the idea is if you sue home depot for selling a hammer and i make a hammer then if one of us directly dismiss which didn't seriously dispute this the drop of a footnote the conclusory footnote just sort of disputing the hosted customer but with no meaningful basis for that so in our response the motion to dismiss what we did is we attach places  stipulated that these including office max were in fact google host of customers meaning customers for whom go google has the data on their servers and those are the stipulations not to sue they were filed in texas you know filed in for by them stipulating that these customers including office max were host to customers and finding with that mess those are on the record in our brief so that's the evidence they've come back with nothing other than their conclusory assertion in a footnote that is not so and so we pointed out in our response of the  wanted more evidence than that we could but that's you know that's a stipulation in court that they're bound by and also the first one a complaint does displace the original also there are certain the discussion of the earlier litigation is unfair because all of the original complaint did not unfair about earlier and then in terms of was looking over to see what else has already been covered in terms of then definitely judgment based on the allegations of indirect infringement the point here again is that we're talking about as a district or pointed out that first we're talking about hundreds of customers being sued second on their use of google's products was highly credible and then third you have been the record which to destroy a lot of the evidence that google was instructing its customers on in detail on how to use and second there's also you know irrefutable evidence in the record three sets of different instructions to customers with a lot of technical detail in them as to how to use these products to create store locators which then covers the you know the inducement elements for purposes of there being a real controversy here as to indirect ranchman the main argument that we hear from geotagged is that there's not evidence the record s of the subjective beliefs of anyone who works at google are geotagged reports that's not the question because we have an objective i mean the reason there is tough evidence the record of people subjective beliefs as if you want to proper into irrelevant because the question is objective was speaking is there a substantial controversy between parties of adverse legal interests and immediacy here and we know that there is because there are all kinds of suits being filed over these mapping services the demonstration demands the fact that google is one of very few providers along with microsoft and the instructions i mean all are all very powerful evidence on the record here with respect to yes under the data from standard patents allegations and the other evidence in the record is what the data from says established the reasonable potential that a claim could also be brought against google that's the standard is framed in data turn record location a sixty one seventy one seventy two it doesn't that's not an issue where the fully hosted comes up again after summary judgment they come in and say we fully host it i say there's nothing in the record about that and then the complaint the issue is it's their argument ok we raise it in a minute complaint so therefore that's the only thing you should look at the issue is even in the i'm in a complaint you look at the facts of the time of march  thousand and eleven in march of two thousand and eleven was anyone anyone a google anyone here did anyone know anything about this fully hosted issue or as we continue did it come up later in an effort to create this jurisdiction don't i do not believe that is correct i think it's yeah there was a discussion that we had regarding permissive inc in compulsory let me address that briefly we believe this is absolutely compulsory che sue us and they sue us on this particular patent against us if we don't follow that claim we risk losing all of our claims against google so there was a lot of discussion and briefing on that issue where they were arguing third circuit and we said well even if there are circuit law applies which it doesn't it doesn't matter because this was a compulsory counterclaim the court took that to mean if it's permissive there's jurisdiction and that's not the case so back to this issue how do we know that they're wrong on that issue if you look at the ten cases they've cited all of them other than one were decided before homes al so you're looking at cases twenty years old you look at our cases new new new recent two thousand of two thousand and fourteen look at the first circuit opinion inside of logics sider logic scores versus been talked on and they say the same point i'm raising right now  they say based on holmes the prior cases holding to the contrary are no longer good law if you even look in the use case with the part that we're talking about justice stevens he cites the case they're relying on  says in his concurrence he says these cases stood for this purpose ition then justice stevens says i agree with the majority that a counterclaim cannot create jurisdiction so i don't think there should be any serious issue on that one point i