discussions before a patent ever issued are relevant to the question of specific jurisdiction yes we do we are no help for minimum contacts for specific jurisdiction the supreme court has been quite clear that they have to be contacts that are what caused the claim and i don't see how that can for us exchanges before there's ever a patent in existence could cause infringement it's  not the communications back and forth it was the accessing of the trial version of the software that we maintain an alleged in the complaint in the able alan to copy infringing in its infringing because it copied the software when it had access to the trial version in access that software in kansas and had agreed accident correct but the parties also ellen also agreed to the end user license agreement by clicking through and we may credentials available for allen to access the program and by clicking through it agree that any dispute arising out of or relating to the agreement or the product must be brought in which struck kansas and the the various access that we know allan made to our product or trial version of our product just to be clear i don't i don't remember the e u l a saying product must be brought exclusively in a court sitting in wichita kansas and we allege in the complaint that it was this activity accessing our trial version of sim ryder before was even released but before the patent issue was a foundational activity that resulted in the copying that occurred here and eventually when the patent issued there's infringement there's infringement because the product itself subjects alan to jurisdiction in kansas and you're saying even though the the activity occurred before the patent came into being came into existence it was that serve as a basis for a specific purpose personal jurisdiction over its patent infringement claim because a party's obligations terminated before the patent issue and but the the court did not then go on to governing the violation of the u they didn't activity surrounding the eula that in a minimum subjected alan to specific jurisdiction when they agree that any sort of misuse violation dispute related to the agreement or the product are directly implicates this agreement or your product well absolutely they're related if they were if they're copying specific features of our product and hen and let's let's say the got on a plane and went to which your cancer is to to view our product and then copy our poor our product functionality the mere fact that they didn't do that but instead access it through pictures diction cases say the only contacts you can look at for minimum contacts for specific jurisdiction have to give rise to the claim you're asserting context  give rise to that claim a claim for infringement i'm sorry but no activity that is undertaken prior to the patents issuance could give rise to a claim for infringement no activity if you don't have a property right you don't have a patent and nothing they're doing can give rise which is the supreme court's language to the claim you're asserting which is infringement so i mean i just don't know how i could mor those early activities under which they gained access before you had a patent into fitting within the rubric the supreme court has articulated or what you're allowed to look at for the purposes of minimal we but copying isn't infringement if you don't have a patent so are you do you have some case that would indicate that post walton post the recent supreme court decisions american quote you what they say that  minimum context must arise out of or relate to the activities that you are claiming are the infringing activity so i just well i but i don't think that that analysis would we caught would force one to put blinders on as to is to what the activity was that led up to the infringement of the pat the we we can't we can't artificially assume that but none of those acts were infringing acts were they not at the time right so that they were certainly in violation of the n d a and the eula but we're not being asked to decide whether their specific jurisdiction for a breach of contract cla we're being asked on appeal review whether there are specific jurisdiction for a patent cracks and we maintain that pre issuance activity is relevant to this particular situation where they cut the copy of the product that you have any case that you could point me to and it doesn't have to be a patent case any case at all that would justify in any regional circuit looking beforehand like that at activities which there was a continuum because a they made the product and the began selling and we also maintain that there was general jurisdiction because of among other things the interactive website with a specific call down menu item for kansas the the contacts in the kansas other than the contacts in addition to the contacts that they made to us jurisdiction to defeat a motion to dismiss in a minimum of causey remained for jurisdictional discovery because there's been no discovery as  how many times kansas residences have for example interacted with their interactive website in an intro to tech the cory man did the case to address those issues alone was sufficient to establish personal jurisdiction the court didn't didn't actually accept or reject that analysis but did say that there was the record was silent as to how frequently those features are used or indeed whether any district residents have ever actually used pederast website to transact business and can i just as a procedural matter i just want to make sure that i do have your appeal in the proper cont ite look i often overlooked things so is there a place in your brief where you separately argued that you were appearing a decision on general jurisdiction because every single header in your briefs uses the word specific jurisdiction and those are two different legal concepts and so i by no means do do i want to slight you if you also need the alternative on general jurisdiction but i just don't see it yet what your honor it gets at pages thirteen appendix page a b p x seven the court made it clear and they made it clear below the court says at the bottom of the page here next learn does not allege general jurisdiction but rather that allen had minimum contact with kansas based on specific jurisdiction that's the only allegation here so your honors are exactly right as i understand the law they have to show that the specific activities directed into kansas gave rise to the cause of action for patent infringement and they can't do that they could have alleged an action for breach of the e u l a they did not do that they probably could not have they have an action for breach of the n b a but by its terms that expired in two thousand eleven the patent application here by the way that led to this patent was published in two thousand and nine so it's hard to even understand how they could be in breach of any of those agreements anything that was used in our product which wasn't by the way launched till two thousand eleven if copied that information was in the public domain by that point was all in the published patent application so those courses of actions probably don't even exist and as for the patent infringement action under s based on the questions i heard here and as i understand it as well the the e u well a simply says that any cause of action for breach of this agreement i e the e u l a s or relating to the product in the product is not my  client's product the product is the sim right a product it's the patented product must be brought there is no cause of action here relating to the sim right a product products don't infringe products as we all know only patents are infringed by products nor is there any action here for breach of the year late so there is no basis here for a specific jurisdiction over our client in chance i would also what about the fact that you your to a former next lauren employee contacting mr allen because he tried to purchase the software and said he couldn't get his credit card to go through and i and mr allen said well we'll give you a free trial of the product didn't matter well because there are lots of cases that say that for purposes of jurisdiction you can't manufacture jurisdiction yourself by having your own employees reach out to the other side well you know each of those cases say the employee's reaching out to the other side constitutes a unilateral action by the person trying to manufacture jurisdiction none of those cases say that if mr allen respond and is willing to make the sale then it's still unilateral action every one of those cases uses the word unilateral action by one party can't create specific jurisdiction but once mr allen indulges in a dialogue with the person and agreed to make a sale or offer a free version or whatever it's no longer a unilateral action as those cases call it i don't know why they would apply and i'm sure that's exactly right if i remember those cases in fact in some of those cases the sale actually took place somebody reached out for sale from the p is not really sufficient to be minimum context to avail yourself of the jurisdiction and you're absolutely right your recollection is in those cases i found those single sales were often precipitated by requests from somebody associated with the patent but i really read those cases as focusing more on the singles sale suppose that one hundred different next learn employees a hundred different ones all went on mr allen's interactive web site all of them live in kansas all of them placed orders and mr allen ships them one hundred different copies of his software shipping is kind of a relatively downloads  also i realize there's no fashion a well disk that goes through the mail but in any event you understand the point mr allen sends to the state of kansas to one hundred different individuals whose products make one hundred different sales to individuals who live in kansas are you telling me that the chance for the proposition that if those people were all employed by the patentee enough those sales were precipitated by the patentee that they're all irrelevant for jurisdictional purposes is that the way you view the law your honor i don't view the law hypothetically viewing the law based on the facts that are in this case i'm only addressing these facts and not a jurist i don't decide policy but it seems to me that a single request from a single next learn employee which results in  a trial and error and again i don't have the fact in front of me i'm not even sure that took place after a before the patent issue took place after ok assuming it took place after a self inflicted wound like that as a course of point it is not a sufficient basis to conf jurisdiction here over our client in cancer you agree it would be a different case if it were a hundred different such it could be a different case i wouldn't conceded i'd have to research long more and see if there are cases that talk about multiple attempts by the plaintiff to establish jurisdiction in that matter but i do see obviously there's a clear factual distinction there that might lead in fact to a different legal result anything further in technology gold ward for best advances in technology for game for simulation operating and also in two thousand and one the harvard harvard business publishing partner of the year award based on sim writer