and see if i get any further this time i do think that as was suggested in the prior argument the other side's i think you know they're only tolerable argument frankly because i think it is so clear that the only voluntary conduct that we engaged in is doing business in delaware i think it is so clear after di miller that to do less business than the substantial and continuous amount of business that justice ginsburg said for the court was insufficient diana and that's what's involved here a time we never had the opportunity to put the precedents that neuer precedent to one side for a second i don't see how it could possibly be true that if you were looking at this is an initial matter that you would allow delaware to accomplish in two steps what california could not accomplish in one step well isn't there because there's a difference between doing a consent analysis and by an actual consent analysis and implied consent and obviously i think that if you're going to do an actual consent analysis not a fictional consent but an actual consent then you have to be looking at the pol and the voluntary conduct here was simply doing enough business in delaware to trigger the registration requirements and we know i think from dimer that simply doing a modicum of business what you would need to do to register in delaware i substantially less than the substantial and continuous pattern of business that the court and dimer said was insufficient for general jurisdiction said i think i'm having a hard time following your connection between amount of business and the consent question assume for a minute that delaware through its statute and state supreme court had made perfectly clear that if you sign this paper this is what you consent to and then you sign the paper why is that not enough the paper being the registration what i think the question would be then what makes you sign that piece of paper if you just did it voluntarily then i suppose i would agree with you but if there's a subsequent tell if there's a different other or statute that says and to do any business and state must sign the paper then i don't think it's voluntary then the only voluntary conduct is the decision to do business in the state and that's why i think that's what you have to focus on and i think that is exactly what you have here delaware says that if you want to do any business in our state then you must register and its part of that registration process you must appoint an agent for service of process which we will deem opening you up to general jurisdiction but why for due process purposes that not very act choosing to do business in the state it but it's it's not one that i think is consistent with the supreme court's due process jurisprudence which is to say i don't think in this is why i don't think the unconstitutional conditions argument is really a distinct argument i don't think consistent with minimum contacts and due process analysis a state can condition you doing business in the state and opening yourself up to all purpose jurisdiction because that's exactly what california tried to do and they didn't do it through the gu a registration statute but they basically said the way we interpret our long arm statute if you do substantial continuous business in our state then you are going to be subject to all purpose jurisdiction we think that's consistent with due process the supreme court's a no it's a minimum context is the test the minimum context test focuses i think it's fair to say in justice ginsburg's view in dimer is principally going to direct you to specific personal jurisdiction but where it doesn't and where you have general purpose jurisdiction you're going to get it into places where the corporation is incorporated and where its principal place of business is and i think the only thing the only obstacle to that conclusion would be these pinoy you're a cases and occasions they have told and i think they are telling the lower courts are not just talking to themselves they are saying that to the extent there are decisions that from the noir era that are inconsistent with minimum context international shoe analysis overruled and it is and you've read these more from the more recently than i have any of those cases in talking about contacts and so on connect to a notion of voluntarin and that's a yes i think all of them and frankly i mean that's the crucial connection you're making a yes you're saying that consent which has to be voluntary can't really constitutionally be said to be present if what you're giving up is sufficiently unconnected to this is disproportionate none of that none of the what you would call it in the national shoot your a cases make that connection i'm well i'm going to miss something i think they all do because they all talk about it talk about how what how something is not voluntary in terms of a consent and i still think consent as opposed to the delaware imposes is both an oxymoron and not something that gets them out of the due process problem i also think for the exact same reasons that the statutorily mandated notification letter is not purposeful of ailment because it wasn't voluntary we didn't send the letter to delaware in the astra zeneca case because we really like delaware or we thought your bill what was your registration voluntary what's that was your registration to do business what is never a maybe i'm confused it was not it was not mcclellan turley's consent consent here by virtue of your taking the act of registering to be business with eyes open about what the consequences of that that act which is not volunteer ok so let's forget about the letter the sending of the ok but you have to establish something in supreme court post annoyer you process cases that says something about why you can if you're asking me now if we're past that threshold and you now ask me to point to the case law that says that that's no question that you're signing of the registration form knowing what that meant was not voluntary that was not a voluntary act there is a delaware statute that says if you do business in the state you must register or face and you can choose not to do business in the state so how's that not on what was not what was voluntary was our decision to do business in the state what was not voluntary was our decision to register once we did ok but let's assume i want those two things to be the same thing since you know you can't do business without registering you then make a single choice to do business and rest we know what the consequences of that choices it's a voluntary choice no i suppose if you want to marry them up but i think we get to impose a due process objection and say no that's not the we're with the world works we make a voluntary decision to do business it is a distinct decision that's voluntary i'll grant you that but once we do the state forces us to register so i think those are distinct acts i think the decision for them to force us to register and then have the consequence be opening them up all purpose jurisdiction i think there are two complimentary ways of looking at it one is and i suppose this might be more of them slike a facial challenge would be to say that you know that's just not a condition they can impose but i think the more natural way to look has now because this is not a challenge to a static you went in to delaware knowing what the statute was knowing how it had been interpreted by the supreme court in fact in terms of for many years by the supreme court that way and chose to do business and register in those circumstances you have not brought a facial challenge to the delaware that you're right and that's where exactly where i was going which is i think the more natural way to proceed in these cases and i think it's consistent with all the challenges to all the long term statutes out there is you do it as apply and you basically say yeah sure you know you think i mean you think you can extend your long arm statutes everything but then it's subject to the backdrop of the constitution you think that by virtue of us doing even a you know a thimbleful of business in delaware that you can then force is to register and then you can then say the consequence of that is that we're open to a suit literally based on primary conduct that took place in timbuktu now i think the much more logical way to proceed is well you can say that if you want and in an individual case you will test that and you know here we have a test of that and we say now the consequences that the constitutional consequences of our voluntary decision to engage in some business in delaware cannot be opening ourselves up to  all purpose jurisdiction and i think that follows directly from the diaper decision it's the same voluntary conduct there there was a decision to do some business in california it was based on the case was decided on the premise that was a substantial and continuous course you still can't bring the parenting but i never said we never would we would not allow exercise of jurisdiction over mercedes benz well i guess i thought by the way they treated the agency think it would be six of one half dozen of the other but i don't think anything turns on that i'm saying that a substantial and continuous course of business when there's a footnote in diameter that says you may have exceptional case but i'm saying as a general matter at substantial continuous course that business is not enough for all purpose jurisdictions and the two places that you get all purpose jurisdiction are a corporation is incorporated or where it's pretty principal place of businesses and if in a case like this they're both the same state but that's pretty soon that it's inappropriate to consider only relationships that we've been told should be specified well we're happy to litigate here that's consent if we entered a specific agreement with them and said we're going to litigate all our disputes in delaware that would be consent or it could simply doing business in delaware cannot be a basis and it's not simply doing business and wasn't one of the two justice holmes opinions continues with the third sentence following the two that you just said as there would be no doubt that if being sued you said happy to be here that would be consent so same thing if you say happy to be here when you enter the state by registering to do business i mean expressed the court through homes expressly tie those two things together sure in the noir era when territorial everything so the court had to do somersaults in order to figure out how to get somebody within the territory but the supreme court on repeated occasions has already said those are the fictions that were discarded in international  and the supreme court i don't think i don't know how they could be much clearer international shoe itself says that those prior pinoy are cases to the extent they're accurate they can be conceptualized minimum context cases perkins specifically says which they think is their case and i disagree with perkins specifically sets at one point that when you're dealing with a requirement from a state that you must license and appoint and agent get a license and an agent for process to do business in the state that that is not conclusory that that is not outcome determinative perkins says that and so that's why wasn't that wasn't that because it was not clear in advance of your appointing of the agent what the consequences would be no i don't think there's nothing in that part of the opin that suggests that it and as i read that opinion that that that's one sentence in context but i think it doesn't say there's an ambiguity there so the perkins case i think is helpful to us they want to rely on footnote six in the perkins case in the fact that it cites the the pennsylvania fire case which i think is their best case i think that's the holmes case you were referring to if you look at footnote eight of the dimer opinion it's specifically tells people not to fictions he specifically identifies is the idea that a corporation consents by registering in appointing an agent to the process and he says those fictions were done away with with international shoot and you know this is not the case whatever you think about your settle that that you consented to something that you actually didn't have staring you in the face but he or i don't think you dispute you had that were a supreme court decision saying this is what this means and you signed it anyway what is  fictional what is fictional is that that is voluntary consent if you put a gun to my head i will sign anything you want me to and you can say well if you consented to it you signed but the fact that you had a gun to my head make it not voluntary consent and i think what matters when it comes to waiving constitutional rights is voluntary consent not having a state law that says that you must register under these circumstances and what gave rise to the registration doesn't mean that there's never been an opinion that analyzed it from interest expense stamps were not from this court to be sure i think the lower courts overwhelmingly have held that there was personal jurisdiction and quite frankly the issue had not really been litigated all that often prior to dime weren't quite frankly prior to mylan raising this issue in a number of different cases but let me sort of start with specific jurisdiction because again i think that that's the narrower of the two potential grounds here i think it's important to underscore at the outset that specific jurisdiction unlike general jurisdiction is a claim specific inquiry in fact you can have space stiction over some claims in a case and not others and therefore it really is essential to take a look at the climate issue and of course the climate issue here is a claim for the so called artificial act of infringement under section two seventy each two and i think that the language of that provision is actually quite instructive the language of that provision says and i'm quoting that it shall be an act of infringement to submit a an application for a drug claim in a patent and i'm going to bet some of the irrelevant language here if the purpose of such submission is to obtain approval to engage in the sale of the drug claim that a patent before the expiration of such patent and i think what that really tells us is that what congress did here is to define an intentional act of pat simply focus on where the active x place in isolation if focuses on where the act is directed or aim and again our point here is that the act is directed or aimed essentially everywhere where the patent holder has rights and to get back to the article three implications of this which i think tie into this point i don't think that this is a case where congress everywhere or the patent holder has rights or everywhere where the african plans to  and everywhere that the app and i should have added this this important point and every where the applicant is an attack in those rights and so just to be clear our argument doesn't depend on where the you change the word i think because you had some thought in the middle of your sentence attacking those rights is different from selling something that will take sales away from the one who has the rights i think it sort of a fine conceptual distinction but i think these are in fact is not fine in conceptual it's real well and just to be clear about what the injury is here i think the interest here as judge o'malley suggested in implicitly in one of her questions is and immediate injury to the value of our patent rights because those rights are being into question by the filing of the end of with a paragraph for certification and so in other words this is not a spokeo type case in which it is congress sort of creating it the article three injury by statute why do why do they have a stake in the resolution of the of your practice well for the simple reason that they are the ones calling the validity of the pats into question and you are right there they're saying article think obviously want to they as the defendant in the case that we're now bringing obviously want to market and sell the competing product and judge try to get back to one of your other questions i think it is certainly true that and the applicant doesn't ordinarily and certainly based on our knowledge doesn't ever sort of say annan and application we're going to sell this product in particular locations but i think it's implicit in the statutory scheme that what get how can i just want to clarify that doesn't hand the applicant say we plan to sell the thing that we're seeking approval for not an hyperbola but i think that's implicit in the statutory scheme right because what they're seeking from the f d a is nationwide approval and so the reason why i think this fine distinction is important is because our argument here doesn't turn on the reality where or even whether mylan is going to sell its competing product i would no current fed it believe it i mean but there can't really be any serious doubt that if they get approval they're going to sell the drug nationwide and sell it through established distribution channels presumably including into delta or our argument turns on the nature of the act of infringement and again what they're seeking is a nationwide if there is where this is where i sort of understood you were drawing a distinction between arguments you're making and the arguments that were made i think half order is that as i understood your reliance on calder your view is that it doesn't matter where they're going to sell just the mere fact that they asked for approval and that the article three injury is much a can to the the analysis we would do if in fact mylan prot a d j action seeking to invalidate your path for purposes of whether or not there is not fret yes and just to be clear i don't think there's really any daylight between our position and the position that mr olson was articulating when it was up her a little while ago we certainly think that the fact that the sales are in fact going to take place nationwide tends to confirm that there is nothing in equitable about nationwide jurisdiction and we as does a court to have a fallback argument here that there are additional delaware related con ten to defamation that was absolutely correct and just to be clear we think that that is the appropriate way in which to resolve this case and of course this court's decision this case is going to have implications not just for our two cases w are specific fact patterns but to all of the other cases out there arising under the hatch waxman are we think the correct alice's here is that there are effectively nationwide contacts again subject to the limitation that the exercise of jurisdiction must be fair and reasonable and importantly that analysis under the supreme court's decision in burger king takes into account factors such as the burden to have sent find that there would be jurisdiction in every single state in which they sought approval because if we're trying to say is th either way but what the supreme court said and while that is you need more than just the facts correct but but you need them nonetheless right well which is to say that you are focusing on the defendant's conduct and where the effects of the conduct are felt and sure facts are insufficient and the reason why we think that what of walton is not the applicable framework here and we really think that while there is an exception to call to rather than vice versa but but however you doctrinally slice it the reason we think that walden is irrelevant is here you have there are lots of these cases in which my aunt is raising this objection and i think it would be important for this court to provide guidance in the lower courts not least because what we're really talking about is the question of you know what are the contacts at issue in cases of this variety and again we think that the principle relevant conduct here is purposely targeting our patent rights everywhere and seeking approval to market a competing product everywhere and that makes this no different from defamation and the one other thing i would say on this issue when you say everywhere so that means that you can see the day that the suit could be brought in any state that it didn't matter that you were incorporated subject yes but subject to the important limitation that the exercise of jurisdiction has to be fair and reasonable and so if we decided to bring suit in alaska i think milan could colorable you argue that it would be very very in some to have to litigate there and you would engage in the usual analysis taking into account the multiplicity of burger king factors as to whether or not the exercise of jurisdiction is appropriate there or see just two other quick things on specific jurisdiction and then turn in my remaining time to general jurisdiction mr comments at the outset of his argument that the fact that our position on specific jurisdiction could give rise to nationwide jurisdiction gave him but i would respectfully submit that there's actually nothing odd about that as mr olson said during his argument of course once a product is brought to market it happens all the time that there is effectively nationwide jurisdiction so if i market a a smartphone and sell it nationwide and apple thinks i'm infringing their patent rights of course there's a nationwide jurisdiction and in fact as this court will be aware there are a number of federal statutes that effectively affirmatively confer nationwide jurisdiction such as the securities laws and civil rico and the sherman act which by virtue of their nationwide service of process provisions effectively give rise to nationwide personal jurisdiction i think on the flip side with regard to hatch waxman sure it's true that hatch tracks in itself does not contain an express but i think our position and not my lens incredibly stingy position under which you would simply quote unquote often have jurisdiction and where the end that is prepared whatever that means i think that our position is much more consistent with congress intent because in the congress wanted these cases to be resolved in an expeditious fashion and indeed although mr comment relies on the house report to the hatch waxman act i think the best evidence of congress's and ted comes in section two ninety nine of title thirty five a provision that was added in the america invents act that's a provision that of course cut back on consolidated proceedings against multiple defendants in an effort to control problems with a non practicing entities but which specifically carved out hatch waxman cases from the requirements for obtaining consolidation and i think that's the best affirmative evidence the congress wanted these proceedings to be resolved in a consolidated fashion again consistent with congress is int introduces inevitable delay and in addition you have the problem that will arise because of course these cases if they're try are going to have to be tried in the various jurisdictions in which they were initially brought and you have the very real problem of the potential for inconsistent judgments and of could be designated as cross designated as a judge in all the other jurisdictions i think that would require the consent of the parties or at least some creative activity on the part of the district courts in order to facilit mitigation to designate that yeah well but as your honor we'll know the very fact of designating an m d l judge itself typically takes period of some months and again i think the congress has priority in the hatch waxman act was was on the efficient resolution of these cases and again i think the best evidence of congress intent on this score is not a house report a piece of legislative history but rather section two ninety nine which seems expressly to contemplate consolidating proceedings so i have a minute left i want to say just a word about general jurisdiction if i may i think that this is not simply a case in which this court is bound by the supreme court's prior jurisprudence this is a case in which there is simply no indication that the supreme court today would deviate from those earlier supreme court cases on the issue of consent and i think that it is sufficient here that mylan voluntarily chose to do business in delaware but i think it is also true that in two thousand and ten for whatever reason mylan took the additional voluntary step of electing to register in d i'm content to rest on the fact that it's decision to do business in delaware was itself a voluntary act and that is really all that is required and i think you can expect the responsible corporation to say i'm i'm now comfortable with our list of what the no well i can't speak to why violent decided to register in two thousand and ten i am not aware of any dramatic change in violence business model that took place then and i assume that mylan was doing business before two thousand and ten much as it was doing when it decided to register but i think that the critical fact for purposes of this discussion is that not only do we have the pretty international shoes supreme court decisions we a litany of subsequent supreme court decisions that not only cite pennsylvania fire insurance and other cases in that but the draw the distinction between actual consent and implied and figure or fictitious consent in exactly the way that we're drawing it and then put this type of consent on the actual consent side of the line in the two cases i would point this court to which are cited  three forty three forty two and then second critically the insurance corporation of ireland case four fifty six us seven o four and to be sure as mylan points out in its reply brief that case catalogs a number of different types of cases in which there could be c constructive can sat in the voluntary use of certain state procedures and of course that's precisely what's going on in cases such as pennsylvania fire insurance and if i could with the courts will you just say one word about that to kind of collateral issues that are floating around with regard to general jurisdiction first the unconstitutional conditions argument and then the commerce clause argument judge toronto i also like mr comment really don't think that there's a lot of daylight between the straight up question of constitutionality and the application of the unconstitutional conditions doctrine here but it's perhaps for a slightly different reason i think all of these personal jurisdictions and i'm not sure which way the absence of daylight because i think it probably cuts in our favor for the reason i'm about to say and in a minute corvet can disagree with me i think it cuts in our favor because i think that the supreme court has made clear and it's clearest in insurance corp or ireland that the reason that we have this doctrine the reason we have a due process limitation on personal jurisdiction is because of individuals considerations of fair notice and so i think in a case in which a party is consenting the party is on fair notice of the implications of it actions and so the due process interest in some sense has therefore been served and i think it is also true as mr olson pointed out that in addition to the fact that any separate alliance on the unconstitutional conditions doctrine here has been plainly way the supreme court's decision in oh i think really sort of essentially deals with an unconstitutional condition style argument because a nearby oh of course the supreme court distinguished cases such as pennsylvania fire insurance from the southern pacific case the primary amicus relies in which you had a state saying if you consent to do business here you're going to lose your right to remove cases to federal court and the court said that statute is invalid whereas the statute  pennsylvania fire insurance is valid and while the supreme court back then wasn't really talking as explicitly in terms of unconstitutional conditions because that doctrine was a relative baby at the times at the time in constitutional law i think that that decision essentially rejects that style of argument what about that what about mr comments point that that that's because at that time the supreme court was talking more about that than dormant congress causing issues and not really focusing on that you well i think  that's true with regard to bendix and i do want to say a word about the congress because i think that is also an argument that has not been raised by mylan here and i heard mr comment essentially concede that the thrust of his challenge here is a due process claim rather than a congress claim and i really think that a congress cause challenge would really be appropriately brought as a facial challenge to the delaware statute but i think interesting lee judge o'malley if you take well look at the sternberg case which is after all the delaware supreme court case they construed bendix case which is a case that neither mylan nor its meaty rely on but which i think is really sort of the closest case it distinguished that case on the grounds that the burden was not as substantial and i really do think that the question of whether or not this statute is consistent with the commerce clause would be governed by pipe versus bruce church balancing and in addition to the fact that the burden is relatively slight i think delaware's interest in having a statute of this variety simply in putting out of state corporations on the same footing as in state corporations would be on including subjecting them to the jurisdiction of the court if say that contacts are insufficient to give rise to specific jurisdiction and so if you had a company for instance that put a product into the stream of commerce and unlike mylan did not use established distribution channels that company might be able to argue that there is no specific jurisdiction over a product liability suit but the effect of their consent would be to subject them never the last t jurisdiction of the delaware courts if their product ended up injuring a dollar a consumer so i don't think there is any is it is it i mean do you think that it's relevant at all that that at the time these cases were first decided that there were very few corporations that were doing business in every single state in the union i mean that was a situation where you shows that a few states to do business and and so that it made more sense to allow the states this kind of flexibility well of course the irony judge o'malley is that international shoot far from you know narrowing the scope of jurisdiction actually broadened it in part to respond to the economic realities that people are increasingly moving nationwide and corporations were in place increasingly doing business nationwide and international shoe really added this notion of minimum contacts to the jurisdictional mix to afford a mechanism for providing jurisdiction over out of state corporations and mr comment makes the argument particularly  brief that this is somehow going to gut the rule of dime or i think the practical reality is that notwithstanding the fact that pennsylvania fire insurance is soon going to be celebrating its one hundredth anniversary as a supreme court decision we have not seen a flood of state statutes conditioning requiring consent as a condition of registration i think that i'm aware of only seven states where the state statutes have definitively been construed in that fashion there are if anything a greater number of state statutes that have expressly been construed to go in the other direction now even if there were such a flood of cases i don't think that's any reason to think that the earlier supreme court decisions should not be followed and indeed even die more itself as mr olson pointed out preserved consent as an alternative basis for general jurisdiction and i would no parent that equally in response to one of your earlier questions judge o'malley that california is a state that does not have a jurisdiction by registration statute the california courts have definitively construed the registration statute not to permit that so that if she was not on the table but even more itself the court was careful to make clear that consent remained an alternative basis for jurisdiction in response to the argument that there's a difference between consent and coerced consent well i don't think that even the warren court would have viewed this consent is involuntary and with all due respect this was an express act of registration and again of course a voluntary act to do business in the first place and at minimum where the state statute requires a separate affirmative volitional act that is directly related to jurisdiction whether that act is registration or the designation of an agent i think this clearly falls on the actual consent side of the law and i think he may have said something i think in fairness first that judge toronto you could have a case in which you simply don't have sufficient minimum contacts to give rise to specific jurisdiction yet the state could very much have an interest in providing a remedy for  in state residents and so you know what case would be a case in which you know a good general jurisdiction which is what sternberg says you consent to can be a what's the lang language in time transitory cause of more broadly and so it does provide a remedy potentially for out of state residents as well as for in state residents interferences interest in doing well i think that dollars interest may not justify the entire sweep of the statute but i think that at a minimum it is appropriate for delaware to make the legislative judgment to say essentially we are going to put out of state corporations on a level jurisdictional footing within state corporations and that's all that this consent does and of course that's precisely what the consent at issue in cases such as pennsylvania fire insurance and robert mitchell furniture of course the whole point of the consents there was that they gave rise to general jurisdiction and the supreme court said that there's nothing problematic about that and my point i think was so please in response to judge malaise question about how a court would look at a congress cause challenge that thankfully is not one of the issues before the court here we think that this court can affirm the decisions of the lower courts in these two cases soley on the basis of specific jurisdiction but at a minimum the court ought to address the issue of specific jurisdiction and it certainly would be appropriate if the court chose to go on and address the issue of general jurisdiction as well but our primary argument on specific jurisdiction our argument of whether it's in europe manufacture is seeking to do here is to essentially declare a nationwide war on the rights of a brand they manufacture that is a sufficient basis for resolving these cases it would provide for contacts nationwide but again subject to the import limitation that the exercise of here even though they're seeking approval to sell they may never sell in certain of those jurisdictions right isn't that a distinction at least as time that crombie your argument rather than the problem that says the harm is occurring because of patent well i don't think there's really any sort of daylight there but i think you've sort of fairly characterized our argument which is to say that our argument is not that on where the sales are ultimately going to take place it turns on what it is that the generic manufacturer is seeking approval to do and the generic manufacturer is seeking nationwide approval and under the framework of culture versus jones which is the framework that governs intentional twerps we think that this is no different from a case involving say defamation yes it is true that by virtue of the nature of the tor in a defamation case you know in both the caller case and the keaton case you had you know the nationwide publication of the defamatory material and then the keep in case you had jurisdiction even in a jurisdiction where the plaintiff was not resident by virtue of that nationwide publication but here again the act in question is this sort of nationwide declaration of war it is the fact that the generic manufacturer is calling into question the brand name manufacturers or the pioneer drug companies rights wherever those rights are held and wherever the generic manufacturer is seeking approval to sell the product and so that's why there there may seem to be a sort of slight disconnect here of course that the result in either case is the same if you look to ultimate sales we certainly think that there can't really be any serious doubt that the ultimate sales here are going to take place nationwide but again because this is a claim specific inquiry we think you have to focus on what it is that the generic is seeking to do and what the generic is seeking to do under section two seventy one e two is approval to market and sell a drug that is claimed in a patent before the expiration of i'm just indulging in three points if i may first of all my friends on the other side came perilously close to implying that the insurance corporation of ireland case actually positively cited pennsylvania fire in its language about taking advantage of certain state procedures as being a way because what the court cites for that proposition is a case that they sickly says that if you file a if you file a complaint and then you open yourself up to a counter claim so that's the kind of state procedure to talk about the time but state courts which is a classic sort of personal jurisdiction waiver so that really you know in terms of citing the pennsylvania fire post international issue with the other side has is over doing which is of the new case and they have footnote six of the  says that a consent statute is not conclusory and footnote eighteen at the time which says don't rely on footnote six of perkins so and the last point on that is just the court could not have been clearer and that to be sure but in birnam they specifically said that these kind of old consent statutes are the fictions that international shoe did away with so the second point i'd like to make is that i mean my friend on the other side said the that you know the filing in and in a paragraph or certification is the equivalent of declaring a nationwide war on the patent now that doesn't seem to be the way that congress thought about this at all they thought it was a mechanism to provide some litigation over the issue and i think it's actually interesting to contemplate what happens if the shoe is on the other foot i mean if mai ling were to bring a declaratory judgment action about the validity of this patent i wouldn't think we could file it in west virginia just because we thought that was a convenient place to file the suit and in fact the hatch waxman act itself specifically has a provision that contemplates what happens and where to file suit if in the rather relatively unusual event that the patentee does not bring their own declarator not we don't have a patent in everything that's covered by an invalid patent i mean so i don't think it works in reverse and i think logically we would sue them in their home state and they should sue us logically in our home state the point i'd like to finish with is my friend on the other side began by talking about the several practice of having these cases litigated in delaware well sure there was a settle practice but it's an ambiguous that the settle practice was based on general jurisdiction it wasn't based on the consent theory it wasn't based on specific personal jurisdiction theory it was based on the preferred dime where theory that if you did a decent amount of this and it's you were there for all purpose jurisdiction and both of the district courts that you're reviewing today correctly recognize the dinosaur was a game changer for that that was not at home in delaware and this court the other side doesn't even take issue with that so there submission is that lo and behold business is usual nothing really changes because of dime or because we can also cook mylan and other companies on this consent theory or we can hook them on specific personal jurisdiction and with respect neither of them makes sense pennsylvania fire is going to celebrate its hundredth birthday because it is a pin or yet era case that it's been long over ruled by the supreme court and with respect to specific jurisdiction i simply do not think there is specific jurisdiction in every state in the nation by virtue of filing and and in maryland if that were the case