in bringing this to council's attention at the moment of argument i mean you could at least handed that to them two hours ago and said we're going to be aggressive this in give them a little bit of time that said specifically we're dealing with software of the plaintiff and that software is called sis watch to be secure as well as the safe and soft product lines these are collectively referred to that software as the software this is in time malware software and it is used in the context of global banking transactions specifically made teller machines other practice to use that word in the state of california yes your honor we did provide some banking statements showing sperm bank banking statements indicating that there were a credit card customers or u s residents we believe them to either be traveling to the united states specifically california working in california or visiting help korea and we don't have the court has not addressed it and this federal circuit has not addressed the issue the st circuit did recently address contacts virtual contacts and how that been published during the party's briefings it had been published none of the parties did address and i recently discovered those in looking at the relevant case i'm updating it for purposes of this hearing in this case the defendant was a german company and it ran a virtual platform and essentially the virtual platform was cloud base and customers all over the world and specifically the united states would upload their source code to the cloud based system for purposes of analyzing whether it had any security vulnerabilities  exactly a banking application it was it was software that could be used and any medium not just you know banking in the in the plextor case our case we are talking about global banking transactions which would be doing online banking when you're traveling doing mobile mobile based applications transferring funds so world so the diplexer case is significant because the st circuit rejected the same argument the defendants burbank is making in this case which is our contacts with the united states and a website that was globally accessible they had it in the english language among other languages and we've attached that website in those pages and  advertise on their website thanking wherever you are so the exercise of jurisdiction was found to be voluntary and foreseeable premised upon the failure to implement any researches which would limit the u s to its customers in the united states ability to access the website so the st circuit buds indicate that regardless of a physical presence in the united states that intent to direct activity towards the united states and the customers in the united states was sufficient to exercise jurisdiction over a rd german defend it what's the sum total of facts which since we obviously haven't had a chance to read the case yet but the sum total of facts the st circuit united states yes your honor it was a trademark infringement action and the st circuit the fact the relevant facts were that the german company operated and really targeted the world in the facts in that case is that they intentionally made their website available in english so that and they did not restrict access by the united states by customers  in order to promote its remote service channels including on line banking they maintain a website in english it's not restricted to customers traveling to the united states or living in the united states or working in the united states and it advertises banking wherever you are always firesides the purpose of sperm bank in making these representations and this is part of the nd amended complaint could say allegations is to increase its customer base and increase its profits and business square bank unilaterally voluntarily contacted the plaintiffs during the time period that it had a legal sub license to use and copy the software in order to develop another module relating to that  software to secure online payments made by its customers worldwide so each time that sperm banks customers with access or use these from our service s holding has a stronger case in that they voluntarily contracted with the plaintiff they were aware and acknowledge that plaintiff was the excuse of rights holder to the software and they were aware that spur banks license expired subbed license expired as of two thousand and sixteen pursuant to the software support and maintenance an agreement they're continuing to pr whole thing's actions and supporting the software banks customers could not use that software and it would not be triggered in california we believe this constitutes for purposeful direction and like the court in stare we request that the court reject the notion that physical presence as of servers is necessary for the purpose of exercising personal jurisdiction or  at the critical issues which are what's in the record about the extent of any contact which in the record is that it's undisputed that all of her bank's operations are entirely located within russia it's under speed and that spring has no physical presence  chloe's no equipment anything like that in california and there's no evidence that sperm bank directed at it conducted any acts in california or directly that will protect the customer or the banks the software protects the the device so it's installed for example on a t m that is designed to prevent somebody from trying to you know introduce some software into into the a t m that could then devices installed in california was that are the devices installed in california yes if you look at it the a t m is would have to their spring has no a t m s in california they're all in russia so we have no idea how they're alleging that this software supposedly m and you're saying that there has to be a device from the world for a go a t m machine in order for that to happen i'm just saying we had they make the allegation that when somebody uses an a t m that somehow software the cloud where your client software might be i or do you not even have that so all i can tell you is sperm banks position is they've only install the software on a t m s in russia that never leaves russia we have no idea of the basis for their allegation that somehow when somebody goes to a welder barghouti banks they only saw for urban cows the only system that's being discussed here is actually only located on reef and it's in the declaration appendix nine seventy three dollars they list eight steps that are supposedly performed that constitutes the infringement they actually did actually nine the nine step is repeating steps one through eight and what they say is that's occurring that's all internal to a device in california so apparently they're saying if you use your a t m card that's all happening within the a t m that's in california that would be a wells fargo or some other nonce burbank  or if it's a mobile device they're saying well i might have a mobile app on my phone and i bring it to california and then when i do that in california all this is happening on my phone in california again that's a device that somebody else a smart phone that's not a sperm bank smartphone that somebody else's smartphone that happens to be good you know which the russian bank from picking up software i mean mellower the united states they do not allege that there's any communication back to that  part of the infringement is not well we're looking at we're looking at invoices here lunch in a restaurant in california and it's got the bank's name and so that's because there's a financial transaction occurred in california the so there's a visa that st of all that is completely unverified we don't know what it is on its face it appears to be a visa statement so bank issues visa that credit card is somebody who that one that appears to be is a transaction which somebody had a sperm bank credit card and they went and they used it they used it in a restaurant say and that then gets that transaction then gets processed by the visa or whoever the credit card processor is which is not or the action is protected against mellower at that point they say it causes the there's no software installed on the credit card you know i so so they're saying that some in french when i when they take a credit card and the company scans the credit card it goes back to visa processing center where we don't know where that is but that visa software somehow runs this did just depends on who they have have an allegation in and or evidence that says so burbank puts its product on to california device there is no out such allegation no such allegation and is there are a ok as i understand there allegation is that if i have a mobile app on my smartphone and i go to california and i use it internal to the smartphone steps happened that that caught constitute infringement of the patent in my mind but i thought about this more it you know this this case  is more more akin to folks worldwide volkswagen right where the allegation was somebody sold a car volkswagen in new york that is obviously a cars are obviously mobile they can go wherever and that it was a defective product and somebody drove i oklahoma and got injured there and therefore there should be jurisdiction oklahoman they said no the year the allegation is you know there are mobile apps you can you can you can put a mobile app on your smartphone and then when you take your smartphone to california there's occurring on that smartphone and therefore spur bank is is liable to be sued in california right but that the situation might well be different if sperm bank puts its software not on the phone that ends it without a factual finding after a proper factual process which i don't gather we have had here so it makes a difference i think whether they even the legit or more importantly even if they alleged it whether in whatever the proceeding was here they had a declaration that says it is or there is no allegation or declaration that says burbank software gets loaded somehow onto a wells fargo a t m when somebody all in the record and i haven't investigated that personally you know that the allegations about being able to do online banking i think for for purposes of that there may not be evidence but that's i think that's the problem here we were we're california and those and and spur banks actions towards california have to claim has to arise from that here what we have is a situation where all of the there not that legend that communication going back and forth to russia as part of this are what constitutes infringement the infringement is entirely as described in page eight in one of their brief and in the declaration is entirely happening on software within the device that is located in california so this is this device that is located in california that is doing everything that they're alleging the claim arise down that's not bank directing anything at california it's not arising out of conduct  not and to me that's significant because whether there's confusion about using a trademark is to me is different the patent but there's also allegations about that it accepted recurrent business from the united states in a substantial amount and that it did so knowingly and there's evidence that engaged in sizeable and continually commerce with the united states customers and there's no evidence of anything remotely like that in the record here i think in fact if you look at it like the next learn case there was a and it does an interactive website case and there was an allegation that they gave a free trial to a customer i think it was in kansas and they said that that well one instance is too insubstantial and you waited to support jurisdiction and here we have evidence of one thank you your honor may it please the court i don't intend to repeat my colleague's arguments which i grew with suffice it to say that if the court finds that jurisdiction exists as just burbank just does not exist as this burbank it also does not exist as to s holding but i would like to explain why even if the court were to find that there were personal jurisdiction against burbank it still would not exist against s and s holding so according to appellant the only intentional conduct engaged in by s and s holding was its provision of software support to sperm bank in other words providing software support in russia to a russian bank appellant alleges gives rise to purposeful express aiming at the form california that argument is absurd on its face and incompatible with the supreme court's decision in walton which clearly stated that the defendants relationship with a rd party is insufficient to find personal jurisdiction and there the defendant was aware of the plaintiff's substantial connections for the forum here upon has not even alleged that sperm bank was aware of its customers connections to california much less that those connections were substantial and there certainly is no allegation that s n s holding had any awareness of sperm banks customers connections to california analysis is completely different because when i felt so i've been manufacturers a card has no control over where its customer drives their part in this case the defendant had control over which members of the world could access its website it's severely chose to provide that website in english and it specifically offered those services to its customers to increase its customers base and its profit that you are correct judge tronto that there is no allegation that we installed any of the software on quitman in the united states or that the defendants did what we are alleging is that when the customers of defendant travel to california that the defense components they anti man malware components of the software get triggered and on u s soil and finally those components get what do you mean they get a trip where are those components they're there on the a t m in their associated with the service on line banking whisper bank mobile applications and when that card gets swiped at it and an a t m on u s soil those components are triggered and protect your home and all those components when you see those components are triggered and in the virtual world where are those components it's a difficult concept but i believe they are triggered and project that transaction on u s soil i'm sure were district court made to exercise personal jurisdiction over the defendant in that case but it was a globally accessible website that targeted the world and specifically the united states including me thank