though that the intended users were going to have were those out in the marketplace in the hands of the users using them they were being offered for sale at a bit but that's a specific a c evidence gets we don't have anything that goes for example to the already for patenting kind of standard that the supreme court articulated in our sale bar where which indicates and you intend to do it five years down the road right well i would suggest that would be impossible because the actual customers that have seen them by the time the complaint based on  and they've actually expressed concern with respect to my bill so we think the pleading adequate to show that the products were ready to be marched into product into the into the marketplace and then before the district were actually the product somewhere maybe even out of the country but maybe it was in the country we don't know because we was no discovery taken but they've represented that they didn't know the court read that finding it was you know something about where case seven and k nine units and might have been in the world so you're right so what is it this is connected to the question whether you know did you have record we believe you know i'm not exactly certain that my clients in taiwan but there was product distribution we had then reviewed the complaint and this is what you know based on some communication somewhat constrained what we are legit in the complaint and what we presented to some extent to the district court to explain what the materials point meant but we were somewhat limited to just putting in new facts we did secondly we don't know what the number of structural similarity is whether that has anything to do reading on the patents so that's not helpful is that it could be more definite but i think the case law is pretty clear you don't have to admit your product infringes you just have to have a reasonable apprehension you're in a good suit and as we presented this side by side photograph it was almost  selling that look a max one twenty that was expressly identified they came back and said well this is on august second have to responses we still think they knew our friends in our products in the united states that's an express threat not sure i heard correctly you were saying something about the comparative trott's between let me let max went to one twenty and your product or where is there any suggestion in the complaint that there were there's similarity between now because i'm looking at paragraph twenty two that just states but they provided charts that demonstrated how they patents read on that but i don't see where you're saying we're just like k seven and k nine are just like or very yes so what are we supposed to do with the point you were making which i assume you think this pope would have to have determination about or there ought to be a d j here which is the same paris and between the maps and your products if that's nowhere in the complaint express content express charges of infringement and they have these products of things in there that they're attempting to introduce into the market and from their perspective when they look at this enermax directly with the with what they're making they have a object to outrun even a bike cept what you're saying and agree with that my concern is that that i don't see the aggregate complaint that specifically is not in the complaint but we believe we have didn't know really don't connect all the dots so i agree that there is not a direct statement in the complaint but we tried to explain to the district court clee initial accused you of doing it right but quite clear they didn't know what the case seventy canine products right the judge felt that we don't know i mean we those those products or they're seeking distribution and there are people throughout the world market and it was not like they're going to confront their competitor and  my morning me please the court robert mccarley on behalf of isa track your honor as i was sitting over here listening to mr a can argue i was struck many times by so many points that he was making that i have no basis master etc so that i take it is a some kind of assertion of your belief about infringement once you accept that they're not responsible for lip max their complaint says they've got prototypes of these other things you don't know about the other things and as i read our precedent it's quite clear you don't have to know and why shouldn't that be enough given the essential policy of the declaratory judgment act that patente should not i mean or i don't want to call it threat but the prospect of infringement be able to freeze a competitor out of the market with a competitor not able to get resolution of the issue your honor there are a lot of questions in there i'll do my look at that but all of this is all that is all together this is this is the story this is really different i mean really outside the bounds of what the supreme court had in mind and met them you absolutely are in for a variety of reasons to answer the court's first question judge toronto we believe that the complete sets work the allegations upon which declaratory judgment jurisdiction should be determined we did file a facial challenge to the complaint and then there was some evidence that was a deuced it's our position that the evidence that any c presented should have been presented to support or substantiate the allegations that were in the complaint but not a new allegations we believe they did that in a couple of respects i will also say in all candor in the court i'm not aware of any cases that discuss the cleavage between what might be in the complaint and what challenge of the facts they are very vague and they're not sufficient to establish subject matter jurisdiction or case or controversy there were a lot of what should what should they have said about their product similarities that are relevant to the claims in the case and we sent them a clean chart with respect to the enermax product that could have been an easy template for them to use to focus on certain elements of the claimed invention for instance the claimed invention specific it refers claim one of the three six two patent to a reservoir that's divided into an upper and lower chamber that's divided by a horizontal wall that has certain passages et have the same structural have same structure or were even close to what was going on but yes what them what what infringing products well being referred to states what products as that refer to well your honor i can say that did not refer to the k seven in the canine products at this point i cannot recall specifically what was being referred to there but it was obviously selling other infringing products in the united states it doesn't identify any products whatsoever and certainly not the case of and the canine products in the case law doesn't require the identification of it with us if you aren't there are three cases that the that a b c is whining on to try to state that products don't need to be identified the first thing i'd like to point out is that they faced with this court referred to as a high barrier in the  jurisprudence that has developed in this area of their presidential opinions and if they do say that you don't have to identify the problem that you may consider them a rarity but we consider them president well your honor they are precedent but they're all distinguishable which is the point that i wanted to get to that was cited with approval in the arrowhead case by this court in both those cases you have processes in the doing case it was a coagulant manufacturing process for making rubber and then in the era head case it was  accused of process and a b c is doing the same process basically it's a tactic you some specific products against other competitors in this case cool it and cooler master and there's no allegation that their products are the same jurisdiction is sort of indirectly is to say something as general as our product might reasonably be accused of inference and that suddenly supports a j action you don't have to do mapping or anything  not what what the supreme court in medicine you meant very deliberately try to expand the opportunity for resolution of possible patent barriers that free people out a risk averse ness of the market your honor the reason is this case is different because we never accuse these products we the statement as i was saying earlier in a two zero seven in my email that we believe very specific saying why is this not within that policy your honor respectfully they have not alleged those facts in their complaint and answer the question that the court asked me earlier judge your ontario that it's not alleged in the affidavit by mr david wang either there's a lot of argumentation in the papers i counsel that's your attorney argument that finds no support in the complaint i thought mr wang said i've talked to at least two customers and  that he has had conversations with i my power and thermaltake and according to him and by the way your honor this is all it admissible hearsay but we can set that aside for the moment he says that i just just the possibility of liability you are it does state that the i am referring to paragraph twenty six in the complaint that a sixty seven it says that eighty six customers for the case seventeen thousand products have an express concern and then there's the missing words in here that will subject them to liability under the asserted patents it doesn't say anywhere in the complaint that a suit tech has ever told any customers that they that the case seven or canine will in there's no allegation of that all in that the thing that's telling your honor is if you look at the declaration of david wearing that was supported to try excuse me that was provided to try to support the allegations in the  very little in there at all about the substance of what we're now discussing and in particular nowhere does it talk about the state of k seven or canine as of the date that the complaint was filed which is a conspicuous absence  they were under the obligation to try to establish that as of the date the complaint was filed september thirtieth of two thousand and fourteen that they were in their words ready willing and able to sell these case evan and canine products and there is nothing in the wang affidavit or any of the affidavits that comes anywhere close to that the wang affidavit actually doesn't even mention the case seven or the q nine until the final page in the final paragraphs where  is the status of the other litigation and you've got the super going on a northern district of california right now i'm sorry you are eager to question we have a case against school that it's settled we have a case against against a cooler master entity and that case is currently up on appeal that went to trial the jury found in favor of a syntax content ok but to get back to the point that i was just elaborating on and i see i'm running out of time not immune and all the articulation is there of later i counsel has argued in their papers that there were expressed threats of infringement your honor we don't believe that's accurate first of all there were no accusations against keeping people out so you have an answer i'm sorry could be i'm not sure and of course i don't i don't know why it is you said there was no accusation of letter that was an accusation but it was a mistaken accusation because they didn't manufactured a lick match that was cleared up and we dropped the matter we didn't pursue it they wrote us back and they said we'd like to talk to you we'd like to get together and we said we don't see a point in getting together you said you don't make a lick marks what is there to talk about this is all in the record and then they responded and said we want to talk about matters of mutual cooperation and then we responded and said that we would meet with them but your honor the point that i've been trying to get to is after all of these correspondence that the court has been asking me questions about in the record the parties had an actual meeting that was requested by a b c the party sat down and there was absolutely no discussion there was no accusation of any infringing products at that meeting under eriksson has testified to that in his declaration which is in the record at eighty two e z submitted a declaration that's also in the record since he agrees that the case seven in the k nine were never discussed and there was no accusations of any a d c products in that meeting whatsoever we think that that completely dispelled any possible object of apprehension of a lawsuit being filed by a v c in a situation scuse me being fired by a satanic in the situation so you can look at that string of correspondence and we don't agree that those were specific threats of infringement forty b c products you can you can disagree with me on that but if you look at the actual meeting that happened the face of face meeting where there were no accusations that were made about any products at all and then we get sued a month later we were caught completely off guard by surprise there was no mention of anything about the case seven or canine or a lawsuit coming there was no attempt to clear the air you have it in your hands if you have it in your hands you can take a look at it but at this point you know recalling we've been in the very on constable position of essentially having to kind of admit that we in french as you well know i mean it's on the should come in terms of the apprehension of liability because now the infile that they're going to know are gas that you're infringing in turnaround of that can't be one of the components we consider no we'll just print so i think one the blood have to do with that well it's again you know because an objective test you know where you have to sit in the shoes of a b c and again one of the issues we keep dealing with is that she's not finnigan  that's that's occurring so again there is there are some there are some problems between the company and then they get hit with a letter regarding infringement of the enermax product which looks very close of the case ok not so if you're a v c you're getting very concern and worry at that point and that there's it was clear that there was a threat there there were contracts and everything else so our company response back  cannot specifically and if you look at the components with respect to you know the claim elements of mine the assembly in the heat exchange late and in the air max liquid pump head they're please be advised that as a tech believes that a b c is likely selling other infringing products that was dated august second two thousand and fourteen correct canine products were not discussed during the week while your honor this was this was a discussion to resolve disputes between the companies and they have ongoing pending or any just gushing about what was meant by this letter or what is it you're accusing us of doing yes there there were these specific products were not mentioned but we were talking about a license and because it's not in our interests to bring up all the products that may or may not be a fringe you know we could do a list and that's say i don't know what you're charging us with this we're not infringing anything no your honor this is this was a discussion we're trying to resolve the dispute so basically we we said ok we're you