action was established yes exactly determining the factual determination in this case article fifty motion indicated that there was no set of facts in which they could possibly establish implication because there were no actions that took place in the united states and i think that the court recognizing the reality that there had been no evidence of an offer to sell or sale found the only possible close hook upon which to hang a cause and actions were wrecked infringement by alleging point of the matter is that there was no evidence no set of facts that could have been argued to constitute importation and that's the reason why ten months after trial importation by the party yes  control any place in the world so that's their right to show or knew that they were going to the us when they made the seller knew that the purchaser had requested they be sent to specific locations all around the world including the united states directly to that you looked at commercial standards of normal contract and in this case it's pretty clear from that reference on the website it's clear and even in view of the actions of the parties to that everyone intended that this was a transaction it took place in canada but in row check there was an immediate sale to a party outside of the united states yes but the court in dealing specifically with the question of whether or not there have been sufficient jurisdictional contacts with the united states to setting up an informational only website in scandinavia for example would therefore be subject to jurisdiction in the united states simply because somebody using that almost like a telephone book in a library using that  informational website to find a telephone number call the scandinavian country and said i'd like to order a b c product which doesn't infringe in scandinavia and once it shipped to the united states saying aha you have now offered for sale  consideration or willfulness determination and then lastly i would significantly like to direct the court's attention to the conflict in infringement issues which i think is very very significant here i hope that the court found that is intriguing and frankly as the patent office that he was the first to come up with the refrigerant in his q the first to come up with an idea that you could use something like kinda blue ice or commercial refrigerant that was he used the language at gap did to retain here cool so say that if you put the cube in the freezer and you put it down to freezing temperature took it out put it in a glass of water surprise it would eventually come to room temperature there is no control in the experts testing there is no comparison with other known refrigerants and notably this expert at trial who specifically asked did you find any unique properties in this polymer everybody agreed what the substance was did you find any unique properties with this particular polymer that made it suitable for the specific use of retaining here call that was the court's markman consideration his answer speaks volumes he said i didn't look for it and i didn't find it i didn't see any i didn't notice it his tests showed only that the cube of the filler could be frozen and if you removed them they would rise above freezing temperatures when kids would sink the big surprise at their will happen in fact the timing of it is quite remarkable he found that within one hundred twenty to one hundred fifty seconds that's two to three minutes it really was above freezing temperature and that in this case his second and third test he found that in thirty seconds  they had gone above freezing so we actually asking the question said what a sandwich exhibit a different phenomenon you can make up a question like this in his answer reversible error as the court should not have allowed the jury verdict to stand in the view of the fact that this was john science in the worst degree this was an example of no science at all this is an example of an individual who simply said what we all intuitively know  will get cold we all know that as i somehow try to be humorous in my brief mention that rock paper scissors in my thumb leaves it at that same phenomenon but that would not nobody in their right mind would argue that that's sufficient to suggest that impressed by the fact that this fellow was a ph d i think they were impressed by the fact that the judge let him testify and i think that your it was unduly persuaded that my client going back to the earlier issues was  personally witnessed that i think my opponent was able to make a great hay with the fact that my client was a was an importer of cheap asian products and i think that the way we were talking the subject matter jurisdiction o because the issue of whether this is a subject matter jurisdiction is something that applies not only to this case but to all cases in this case that it demonstrates that the subject matter jurisdiction it can be raised an issue like this can be raised on the third day of trial article states now looking in this course to be i think well aware of its own decisions i've looked at the federal circuits decisions in this area under the pen and in the better arena and it doesn't appear that the federal circuit has treated it as the jurisdictional issue in rhode rotex for example the court went on to say that we must analyze where the defendant's activities in the u s as would be construed by reasonable jury are sufficient to establish an offer for sale which is suggests not a legal issue it's one for the jury if you look at this court's opinion sharpening the mc it seems consistent i found the federal circuit decision which personally grant one forty six f stop it fourteen zero four and again this is kind of like the electoral case the district court but in looking at the extraterritorial effect of the copyright act held that it would last subject matter jurisdiction over the canadian publisher because there were no acts within the us that took place the a circuit affirmed on different grounds so whether or not a rule of law that would be different from the copyright in the pact seemingly congress would would have the same rule that if you're for any sort of going to be deemed liable in the u s it's either going to be an element of the claymores going to jurisdiction i can't see why would treat one different from the jury this was submitted to the jury we weren't sure how to handle so that the jury instruction conference we discussed this issue the jury instruction state that the sales office for sales and importation of the three things that were injury action that issues discussed by them and jury instruction conference a similarly if you look at your instruction number twenty on the copyright side again you have distribution us there was substantial evidence in the record so if the court finds at this court picks thirty thirty one of our brief the record is replete with that missions from their president that they sold off or to sale it's important that's from the record into this country we also had invoices are there since records that showed us you know us and then we had evidence of course of the website so we have admissions and there is sufficient evidence for this jury to find that they offered for sale that they saw is a poor product in the us it would be i case but they have a presence in the united states and their argument is that this producer has no presence in the united states all they do is advertise and accept payment in dollars except u s credit cards who are points which they have made which way i think quite strongly on establishing importation at the same time there is a line somewhere is there no match between activities that do and do not impinge adequately upon the united states to be deemed importation well i think that i think there are lines to be drawn of course in this particular case what's undisputed is this is a canadian company that had a website that was targeted to us that was in u s dollars that toll free number there's no dispute on this record that this company is one solely responsible for targeting the u s for directing the ship into the u s the only the only distinction we customers are thinking themselves i've got importation she said i better check with legal counsel to make sure that i can employ proper whereas if you're wal mart of course on important product i've got the legal counsel i'll check into whether i'm legally important product into the u think they are important here i don't think that you can say in every case whether there is importation or not it's a fact specific inquire but i also think the district court judge i think thought and guess what we're guessing what the district court judge thought was a middleman and it's the middleman is being held liable where the courts are drawing the distinctions when patent owners are trying to go into chinese manufacturers that sold its product to somebody else overseas and is it somebody else that brought the product into the u s there's no case where a company had a business in canada had a website that was under subpoena be directed in other parts of the world maybe but the bulk of its sales it it were he was directed at the u s in u s dollars but the toll free number says is for purposes of finding offers of say under two seventy one a with this course says and three d systems and philip says we're going to we're not going to look at f o b i mean in three d on the invoice it said this is not an office and we were talking about there's no dispute that two hundred thirty thousand products were sold into this country and that's under the american philips the product one of your who's responsible there's no dispute that his clients responsible and as a practical matter if this were to lawful court were to go this far in this case to find that there's not an offer for sale sale or importation all somebody has to do to avoid infringement this is be very serious for a country is our clientele have even our big u pfizer case shockley there was a middleman and what the federal service says look the four manufacturer unless it's under inducement can't be held liable but there's plenty of cases from this court where the little mian which is what they are was liable because what we're congress knew how to say the difference between the two the statute establishing importation is now a new element new cause of action that can be proven specifically indicates that that's covers importation congress knew how to say not only importation but exploitation there is a difference it seems to be a significant difference you can't by simply get so factor saying we're the the importer we are the middle man we're not we are a canadian  sometimes but two hundred thirty thousand sales in the united states that is not true that isn't gross exaggeration the record my point testified at trial that he kept track of sales by dollars u s dollars in canadian dollars if the sales were in candidate they were canadian dollars if there were any place else in the world they were in u s dollars because that's the universal method of exchange so he said clearly that there were sales made in the united states he didn't say that the bulk of them even seen any of them he said there were undoubtedly sales made in the united states and there were not the night in but we're also laying great weight on the fact that the website itself says we do not offer e commerce you cannot offer of this website you must call canada now let me just conclude by saying that the idea that has raised on the third day of trial gets more mileage isn't it should we deny that there had been sales or offers to sale in the complaint it was their burden to show the reason we got talking about the importation is because there was no evidence of any offers for sale or sales other than the fact that we're talking about here he they tried to argue that well having this website even though it was an informational only website was an  they tried to argue that there was somehow a seal we had actually consummate in the united states in fact if you read their complaint they talk in terms of sales in the united states and candidate in this judicial district talking about st louis you need to wrap it got into conflict with john is it in conflict with our by our allies tough case you are it's a case where obviously the issue first comes up after trial when there's been no allegation that there were less than the fifteen employees