purposes of patent that what do we do then because at least my reading of our president supreme court precedent is that that's a merits a question not a jurisdiction question so we could have a firm alternative basis space are going to be protected by u s patent and green i think that might come well raised against you because there was a decision by congress to express they have started talking about inventions on our space but there is no such equivalent for well i might but for the fact that you know the gardener case has been cited and we're heatedly since eight hundred sixty five congress has clearly been aware of it and congress has never legislated to change the patent office say that that that that is relevant let me let me get to that a second there is another i want to go beyond some u s case is going to this argument is that the converse true that if there's a flagship of another country station in the united states harbor which is clearly within the united states territory is nevertheless in the uniform patent infringement claims because it flies the flag of a foreign nation if there were there were versed i think might might well be true that what the cases have said in terms of george diction for foreign flag vessel in the u s territory it said that only if something has happened which would affect the peace and dignity if there is some sort of major crime or something so it might it's not the brown versus  ninety two says the us ships quote ship shall sail under the flag of one state only and save in exceptional cases expressly provided for in international treaties or in this convention shall be subject to exclusive jurisdiction on the high seas article of this case which to strengthen the minimal contact right i love as i want to get to that first of all as you've raised your honor we know that rule forte too was adopted specifically to ensure that there would be a federal form for federal claims where there aren't sufficient contact with a specific state that's why we're here we're here because we're supposed to be here we're supposed to be here because when there isn't a context of the u s state but there are contacts with the nation i g something like a u s territory here and there should be jurisdiction now what are the gets it in some ways it's an unusual case because you know what the sometimes it's someone selling a product or something that goes into a jurisdiction here they are in the jurisdiction operating this equipment that is in friendship and if and in that  to individuals in the united states they came to a trade show and expressly were saying we don't have f d a approval we're not seeking to sell people in the u s but this what this court said is when you came into the u s and when you were here in those trade shows you were taking advantage of the privilege understand that when that be you know well if your ears what i think the other side talks about you have to be exploiting your u s market i think that's that's not quite correct if we go back to burger king and international shoe and the basic principles the and it was a company that was accidentally initially accidentally using a web server and oklahoma and after they learned that they were accidentally using it they continued to use it for just a few months for months in order not to interrupt service to customers and they went to the court they said well we weren't you know we you know this was not something intended to do and we weren't there very long the tenth circuit said look that may have been sure when you first found out but when you stayed for another four months you were taking advantage of doing business in that forum now plainly they weren't trying to has to do with the venue issues not the personal jurisdiction issues so we would hope that the reasoning in t c her plan applies running on time but i thought i'd like to address your point the t c heartland hates the kid the oklahoma case i just mentioned the world tronics case all of which are covered pages thirty seven forty in our opening brief repeatedly reject the refractory projection of what my colleagues on the other side's argument is which is a gene if a customer asks us to do this then we have really purposely directed activities into the for all those cases say that's not true as you know just so in t c heartland i believe it was less than two percent of the products a very minimal amount of products were going into dell or the court said if you did it and it it doesn't matter that it's not that many what matters is that by putting those products into delaware and into that forum that you were aware that you might you might be hauled into court there that's the inquiry not whether you're trying to exploit the market is are your have you done enough business and this court has said even a single substantial contact is sufficient to establish a minimum contacts last point i'd like to make before i sit down if you remember also the standard here we only have to make  basis to do it would be for failure state of play when you're twenty six it's it ultimately goes to the heart of whether or not they have stated a claim now in terms of the question of whether this court can reach that issue with the court doesn't need has already made a ruling and the district court ruled on it although again complicating this unusual case ruled on it in that the second case that m i filed against the da op da i got dismissed from this case they refiled against the idea i raised in a second time in that case and the district court has ruled on it and that was part of the fact that case is am i has actually as i understand it withdrawn dismissed that their claim of infringement and the only thing that's really what to be resolved is an issue of id i was request for attorney skis in that case but getting back to the question of why should this pure question of law secondly they look to has the issue in fact been fully briefed by the pardons it has been here it's been fully briefed actually three times one in one district court case one of another district court case and then here again on appeal and the third factor that actually isn't in the other cases but what makes it even stronger here is that the district court has to in fact world on the issue if you don't decide and you just say we're go no for the first time in a hundred fifty years there actually is another case out there that follows gardner it's the district court in this case and since we're talking about that case let me just talk about that issue if i could briefly  it comes down to this question of the law of the flag doctrine is ultimately not a statutory construction tool it is a common law of choice of what off principle it comes it comes into play geographic scope and that's just a critical difference here because every case that's decided whether age ship is easy territory not for choice of law but for a literal interpret i in that context because we can't just ignore the fact that the forum that they want to point to as being a contact of the united states is is something that is different than physical us territory  we're not going to i mean if it's us territory to us territory it doesn't i don't understand how it matters whether it's a ship or it's an island or something else if it's a us territory it may go to the strength of the contacts but if if that if the jurisdiction anywhere where there where there's any kind of minimal public i'm not stating it quickly the case who is supposed to resolve the problem of whether when there's enough contact with the four of but there's not contact enough with any specific district united states territory but let me let me maybe the confusion here is if you're still relying on your rely on the district courts notion that you didn't direct this conduct into u s territory because of the contract put that due process analysis is ultimately a complicated fact specific analysis so you can't just look at this one fact in isolation this is a this is u s territory and state that's the only fact there are there are other factions one or the other first of course is the contractual thing that goes to the question of whether or not it was a purposeful avail much but it's also a critical fact that this ship itself has been moved to brazilian  jurisdictional walked so you've got brazilian citizens i don't care about that because i assume for purposes of the law that this is a u s territory wherever you with the notion of a ship that can be moved as part of u s territory but if we answer that question in the affirmative up and assume it's just like a state or territory or anything else i don't know issues like this arise all the time where you have two foreign companies that enter into contracts in foreign companies and most of the activity takes place in foreign countries but if they commit acts of infringement here in the united states they are subject to being hauled into a district  again there are there are other facts that come into play and we need to look at the circumstances as a whole again one important thing which in fact here is that you know was not there doing business with the us black shed in other words purposely directing activities at the forum so even if we're willing to interpret the forum here as being the ship it's still relevant whether or not we're directing activities for example specifically at the ship as opposed to just traveling from you know one of them to another island and in the course of that they make a phone call on the rifle are they now subject to being sued having to go all the way to the united states to answer for this infringement hey they've used  but in all of those but in those normal cases a party has sought out norway they tried to make money from norway they are saying they tried to make money from the country they tried to make money in the country so if you try to make money on a norway flagship you're trying to make money in their territory if you're trying to make money on a u s flagship you're trying to make money in their territory i don't understand the distinction once we can go i think you have a very good argument that the pact doesn't reach  territory but if you lose on that then it seems to matter not one jot to me that this is a ship versus the state versus an island but then the last argument i want to turn to on that point your honor is that fair and reasonable probably because that's where the supreme court has said that look there are some times where there will be contacts with before but the remaining circumstances are such that it's simply not fair and reasonable under the specific facts of that case and if any ship so this even if you accept that ok it's territory we've got to just put out of line or to accept the fact we still need to look at the fairly reasonable part factors as they just reported here and look at those factors and decide whether or not this is one of those cases where that kicks in and says the defendant is not subject to jurisdiction thank you very much why is it you think this quite almost everything you're occurring in brazil you saw personal jurisdiction in minnesota just because the act of infringement occurred on u s territory context requirement for the particular district court you choose under came to you or can you just basically go anywhere that my understanding your honor is you could go to any u s district court but you know it in terms of personal jurisdiction  compelling reason why despite their contacts there should be jurisdiction they did not show that there was actually an undue burden on d l to litigate they did not show that there you know how many witnesses were going to come what are all the documents are going to have to be translated they just made broad conclusory statements and