the morning ladies and gentlemen we have we we actually originally have five cases on the docket two of which are are submitted on papers there was yet i'm sorry six cases and one of  which has gone away so we only have three argued cases today that doesn't mean you're going to get all kinds of extra time it just means that we're not going to rush so the st case before the court is communications test want five minutes for rebuttal ok you may proceed this case raises the issue of when a district court can properly decline to exercise or properly exercise its to quote discretion to decline to hear and otherwise proper st filed declaratory judgment case  various motives and you cite to the court's decision at the appendix it him as support but when i turned to the appendix at ten on the ferries mo even if finding mode have because there's aspects of intent which generally require some kind of a hearing is it really important to the court's decision in the court based its conclusion on about three or four factors and that was and you know i sort of read it as an offhand comment rather than a finding but even if it was a finding would it matter well i think i think it would your honor for a couple of reasons st of all we whittle it down to would make an objective finding that that that it interrupted that it's a flow of negotiations that interrupted agreed time for purposes of a negotiation so it doesn't matter whether that motive was nefarious or not there was still an negotiations which is an independent factor that the court can consider rightly did i think it does matter what the motive is under the sony case your honor because in the in the sony case we know that in fact there were a series of actions that were done that in fact that did interfere with negotiations and did in fact change the leverage position but the sony court said just because it's d j action changes the leverage position between the parties that is not a sufficient reason t decline jurisdiction so i do believe it is relevant that motive was assigned and that in that instance where you do have a bit of an uphill battle here you've got a double dose of deference that you have to overcome because st things st if our role is itself equitable and it's entirely within the court's discretion to decide as that deems fit as long as it doesn't completely abuse it's just a question and then you've got the fact that we've got a declaratory judgment action that the court can just say i you could take the three independent points that the district court made i think that in fact you can whittle them away and find out that in fact none of them support the decision of fighting opposing the court improper motive i'd rather characterize it that way if it's supported by the underlying it is a factual determination how is the underlying factual posture of the undisputed fact in the record not at least supportive supportive under the standard of review and i believe your honor that the underlying facts with us so we were talking about the undisputed facts and so  it seems to me that the undisputed facts reflect only that undisputed fact reflect that your client is saying hey let's keep talking at the same time they're following  ship and i would say that there's nothing wrong with that there's there's no reason that just because parties are negotiating declaratory judgment actions should not be filed the plaintiff could have filed an affirmative suit proposed to the twenty you proposed the twenty four i think actually cut to propose the th and we accepted that date to talk yes you are but i don't believe anyone said at all at least on the undisputed record that we won't file suit they you know it that it's not the same standard that you would be we we are not applying the same standard that we're looking at if there had been a motion to transfer for purposes of the convenience of witnesses etc this is simply is that a more convenient rather than a less convenient form and there's no obligation on the court at this point to to honor the the chosen form of the plaintiff but we do believe your hon all and it's there is a motion for sanctions pending that i think the outcome of this appeal may impact that's that's going to be relevant to us motion for sanctions against you yes that's correct in that i noticed you characterize what the district court did as a determination which is implies to me something other than a finding of fact  y and in what the court is doing here is is giving its conclusion up front it's we're setting the stage here's what i found and then proceeds to go through its analysis of reaching that conclusion so i r and content but isn't there a big distinction between behaving in a way that that as a matter of fact does disrupt negotiations and having to defend their nefarious motive for the purpose of disrupting negotiations or for being mean to your opponent to them and that's a big difference right there there is a difference but here i think what the court is trying to do is is look and see do the circumstances fit the proper use of the declaratory judgment act and i think perhaps the true intent of the party could be could be irrelevant it's really the do that does the conduct does this circumstances do those fit  to where the d j act is to use as it should be as a remedy is that is the alleged infringer in this position where it's helpless and immobile when you say that you're not saying that the true intent was not i'm making here called enough area that was a  i don't think that if there's a factual finding of that i don't think that's necessary to the decision if every time you race to the courthouse from enough areas mota and there's an awful lot of parties in the lawyers that are in trouble because it happens all the time but i all the time when you're grocery this is a very unique circumstance where the context stated an explicitly was willing to file suit so if seated you needed a judicial resolution contact was willing to provide it and instead   can i can understand that that maybe if he thought it was going to be new york he might not be as as shocked by that but to be dragged all the way up to california that that that might have prompted it might have been the fact that you proposed a california la that that actually prompted this filing so a couple things on that your honor one there's there's no evidence that that did motivate seach idea in fact that complaint is not in the record the district court did not see it did not rely on it seated yet never put that in the record never made that argument and mr parsons declaration he never says that part of the motivation for filing suit was not to be in california and contact had good reasons to draft it that way we'd at that time when we sent the letter  when context sent the letter threatening suit it was concerning the possibility of fine there because context c e o at that time now former c e o and v p of engineering that's where they're they with their office and their facility it's the current our research and development arm of the company that's where they're located and c t o has a facility there in that district that country believes using the accused systems so it was another district where both parties had think that they're still overwhelming whether evidence to support the conclusion that he did and what about the fact of the witnesses i mean that the c t b i does have a facility up there but but it's not their of business right it's not their primary place of business but it's not like just one of all the rest of their facilities it is unique in so there's there's evidence in the record that this is a regional distribution center for the entire northeast of the united states and it was developed using local grants they get state tax credits employees over three hundred and fifty dollars people fifteen thousand devices are processed there every day so that is a large presence in albany right up right near the courthouse so the fact that that context has such you know it's based there does enormous contacts there in that think that i think to give so much weight both to inventors who had again that your standard our standard of review you know that it's not like the court didn't have a factual basis for making the determination you have to are you saying that that facility up there doesn't that doesn't present an opportunity for you to have to produce documents or i mean obviously that the volume of your production at that facility is going to be entirely irrelevant well i wanted to do it in their own court and frankly so did we i think that's not and that's not an improper motive for choosing a place nobody shooting a form that is that is known to be more friendly to one type of party or another it's there's a there's a sound reason for choosing that to for choosing the forum and that it's where our home base and i think i actually think it's an antec case talks about that and and note that it's not form shopping when you have a logical reason to choose the place that you know there the parties were in some kind of negotiation they were in some sort of discussion back and forth but there was something more there was in both of those cases and expressed statement of the purpose of filing the decora declaration of the protect our rights now let's keep talking and this case doesn't have an analog to that your honour's in the record and i think that's an important point and something worth considering is as you render your decision with respect to th