ongoing identified activity of a party that there is then declaratory judgment jurisdiction if the party contends that it has a right to engage in that activity without a license and that was the rule articulated in san  disk stated that it wasn't reaching the far boundaries of the carter judgment jurisdiction a lower court me to fact finding no charge infringement was made by these let us know what we have though is that first of all i don't believe that the santos court articulated a requirement that there be on top an identification of a patent and an identification of ongoing planned activity of a party i don't believe it made a requirement for an express charge of infringement and in fact the court's authority prior to stand as  indicated that an implied charge would be something that would would could create a reasonable apprehension of suit under the old standard in this case a district court that there's no charge of infringement doesn't that subsume both express and implied well let's not finding so we do that for clear it is a fact finding but we don't believe that the rule is that an expressed charge of infringement is required in order to create clear to him i just said it would be an implied charge and the district court as i interpret their opinion says neither well i think that the court did find that there were mr rayney did sufficiently identify the product line of h p that was an issue and that was a court finding that we defer to and obviously there's no dispute that the patent in at issue has been identified and so the only clearly wrote the tenor of the letter is let's have a discussion resigns with the pretty important we have something better of the letter had been we think you infringed this m very different key we have something one step short of we think you in french and that is that in the very first letter you have mr lena we don't believe it's a jurisdictionally distinct step but let me address what that first step was which was in his very first letter to hewlett packard mr rayney asked that hewlett packard give up its right to bring a declaratory judgment action in return for receiving a package of information about the pat it but he has indicated that he thinks that he will be saying something to show after that gives rise to declaratory judgment jurisdiction clues there are lessons you negotiation involves that every single one once you get behind the closed doors what are you going to say  licensing letter automatically instills d j jurisdiction that can't possibly be the ball that every time a patentee sends a licensing letter here is a patent that we just got let us know if you're interested in licensing that that would automatically because it's the first step down a road that might ultimately result in charges of infringement can't possibly and we're not arguing that that is the rule but we are saying that you just said except for letters when they're trying to assign or purchase patterns were enter a product development agree those were the only two exceptions you just carved out in the in the hypothetical that the court posed the letter did not identify any particular business activity that was of interest all that letter would say is a letter like many licensing letters are that companies receive that say we have a traffic pattern and we think you might be interested in licensing it but don't say that it is quote relevant to a specific ongoing activity of the target entity in this instance mr rayney said in his second letter that he wanted to discuss the quote relevance of do you think that the trigger should be d j jurisdiction any time there's a licensing letter that identifies any specific product even though it hasn't made allegations of infringement just the identification of a specific product should be at because that's not our cases of definitely not help that thus far i be pushing us quite a bit further than we've gone with our existing jurisdiction i don't think there's anything that would prevent us from saying that but that's exactly the rule you're asking but i just want to make sure i understand yes that is the role and we thought that the language and santas where the court said where a pat asserts rights under a patent based on specific ongoing or planned activity of the defendant that that gave rise to declaratory judgment jurisdiction was that rule and that the addition of saturday in of patent rights namely i think you infringe as opposed subsequently filed suit without getting any additional information from hewlett packard so the fact that he has any additional information but maybe during that time he spent time to look at what he already had much more closely especially after you all sued him he may not have gotten more information but maybe he actually then did the analysis that was necessary to reach the conclusion he did so that district court did not in response to the court's points the district court did not give weight to mr ra statement that he didn't think there was infringement or he didn't know if there was infringement he didn't say he didn't think there was infringement he said he did not know and as a non patent attorney c e o of a holding company his statement is that he's not conducted complex legal analysis necessary to decide that there has been patent infringement but that doesn't change the fact that he in his correspondence as a district court found identified the specific h p conduct that wasn't issue say it's a question of what they don't then go on the say right and they they say they come up close to the lot they come up and say we think this pattern is relevant and they come up and say in order to talk to you further we need an agreement that you want sue us for declaratory judgment jurisdiction indicating that the next communication is going to be something that clearly states there is infringement if the code word we think this is relevant to your products is not enough for h problem i guess is that as a policy matter i don't h p is a big company and they make a zillion different kinds of products i mean if patties were just sending you letters that here's a patent take a look that wouldn't be nearly as helpful to you as the com here's a patent it pertains to blade servers you know it's relevant to your blade servers i mean as a big company it's a little company made one product that maybe a patent comes to you that says here this might be relevant to your products you know would be sufficient but i would think i don't see a reason to discourage patent d s from necessarily identifying a line of products without accusing them of infringement so i want you to tell me why we should draw the line there so i think that the suggest a non disclosure agreement along the lines of what santas court outlined the parties will conduct a discussion and discuss the issue and obviously that's something we want to have happen and not too many lawsuits being filed but the demands to waive eleven cited two cases there were insurance cases and in each of those cases there was knowledge that there was a dispute there was a conflict of interests as it were between a carrier and an insured where they had different in neither of those instances did the supreme court say that there was no declaratory judgment jurisdiction because the insured had not threatened suit or that there were any one instance it held that there was declaratory judgment jurisdiction even though the underlying i think that the change after med immune is to stop focusing on reasonable apprehension of suit and to focus on was there a charge of infringement is are they going to sue the next day and so i think that if we're to back away from reasonable apprehension of suit as the only way to satisfy the standard then we shouldn't be analyzing it in terms of had they concluded that they were going to file suit it is had the identify the patent had the identified the activity has there been a dispute crystalized such that the court would be ruling not on a hypothetical case but on an actual dispute when it takes up jurisdiction with regard to this there's also an alternate issue here which is whether the district court should have considered the additional evidence in the record that arose after the time of filing of the original complaint and i think it's fair to say that even excel or honest had to agree that the supreme court decision in matthews versus  see how it possibly can gene the rightness of the dispute those of the file and even the d j action because later there was an infringement suit so essentially what in those two cases was say that the clock was restarted at the time that an amended pleading could have man made with that additional information in it and then jurisdiction was determined at that later point with that additional information in the record and so for example the only way to get the additional information namely that he sued you is after they sue you first filed over and done with you don't get your d j already filed that actually wasn't the only indication in the record the other indication on the record that we submitted to the court were the stipulations that the parties filed with the district court while the motion to dismiss was pending indicating that they were conferring to try to resolve their dispute and ultimately that they were unable to settle their dispute that was well prior to the filing of the texas action and it was in front of the district court at the time that it ruled on the motion to dismiss but the district court thought that it couldn't look at that material because of the timing will and we would submit that matthews and black indicate that where there is information like that in the record it was in the form of a stipulation between the parties that that information should be considered by the district court in determining whether there was jurisdiction and so that provides that in matthew that the supplemental reading corrected a went back and exhausted her administrative remedies by applying for medicare and being turned down and so the facts that were considered in the affidavit supplemental affidavit in matthews were facts that occurred after the time supplemental information akin to a supplemental complaint and the black court was similar to this court applied mathewson help that a special master should have considered a supplemental affidavit that showed that after the original filing the jurisdictional minimum met and human life that this district court judge has of course the discretion even if we say that she was wrong to decline to exercise that discretion over the d j and given the presence of this extent suit in texas is the point of this here is one to set the rules for declaratory judgment cases so that we no one can file and can't file in these licensing circumstances and the other point of the rule is to go back to her and have her conduct the analysis on whether she  should continue with the first filed action or go with an action that was filed here later in texas in which not a lot of activity has yet occurred and that it's going to be a matter for her to consider in the exercise of her jurisdiction and considering all the various factors that the court under both agreed that dollar was appropriate forum for conduct of their corporate activities and we do believe that delaware has a certain interest in resolving disputes between two delaware corporations obviously the district courts and chancery courts in delaware have a plethora of that sounds like going backwards instead of forwards remain in new analysis new decision decide which court just out of curiosity in matthew's the load the party actually f either amendment could be permitted either on appeal or on re manned and recommended that it be considered on remand him so we have a similar set of circumstances here just use it explain that again because i thought there was a supplemental pleading in matthews and  needed the there was no supplemental complaint on file in matthews at the time that the supreme court issued its decision what was in the meetings record was a affidavit and a stipulation that the plaintiff  because of the third circuit lined a kid in the court to consider all of the circumstances relevant to the current or a judgment issue whether or not they were raised in the pleadings but we think that and then afterwards after the court decided that plea so it is a supplemental filing to add additional facts but what matthew's court was doing was indicating that that was not going to deprive the court of the ability to conduct jurisdiction over the original case and you explained to stipulations in the record what had happened was we filed the complaint accelerant moved to dismiss the parties then started talking about whether they could resolve the dispute and there are a series of stipulations in the record and the text of those is in the a indicate that the parties have been discussing settlement and hope they will be able to resolve their dispute or they indicate that the parties have been discussing settlement and the final one indicates mobile we were in the navy is your point of it because the word dispute was used in th beliefs yes your honor she did and let me just find the cite for the court on that and she did indicate that the stipulations were on file there we cited a page five of the record and her ruling on page seven of the record is that the would not consider post filing use of the term dispute in determining whether there was jurisdiction so it was an issue that was before her and she ruled on it she also had before heard the texas complaint there was a request that she or simply is sufficient in the given a requirement for all cases there must be an assertion of rights under the patent there must be accused activity and moral points out there was definitely a activity that mr ranney pointed to in his letters he pointed to the lights or the products but he never accused those particular products of infringement he never identified claims of the patent he never identified or sent them kind charts in never even offered a license or suggested a license might be necessary he just offered it and in the station to discuss the zero to one path and i mean from you know the letters are very clear on their face he could have been wanting to talk to each p about possibly incorporating patented technology from the zero to one patent into and force its patent rights against the person that they are sending a letter to that doesn't take into consideration patties that may just want to win discussions with other companies to see if they might be interested incorporating that technology into their own and they can dance around it because they're competent lawyer well that doesn't really help us decide what makes sense need keith i think there must be at least to be an accusation or an accused activity there has to be because the  nappealing about that but that's what that what the business model is the other company that the prospective infringement defended that's making a product that's mentioned in the letter and the suggested well maybe they just want to do it joint venture or lend some technology is this wildly fictitious we all know what's really going on what they're trying to do is get a license without getting sucked into a d j action so they word that letter its intent when it first sent these letters it's clear from the record it so on didn't know whether h p in france at the time we had some it doesn't have to know if it's thinks it's likely that there's an infringement that should be enough but i think if that line will take the identification of a patent number and the identification of the product then i can come to you and write a letter saying you are printing my patent period and that wouldn't suffice because there's no product  there's no product accused now if i came to you and said hey i have a patent and by the way i really like this product of yours the green one with the serial number of you very very specific about about pointing to a particular product i would submit there's not been an accusation of infringement and also for closes the possibility of a patent and he's coming to somebody and saying you know i'd like to talk with you about this maybe likely no it doesn't you know this is very easy to imagine the letter saying i've got a whole lot of technology a lot it maybe some of it is that maybe you the you'd like to use some of it we should have a discussion it's not hard to write that kind of a letter but that kind of letter isn't being cut off if we adopt them our own free i mean but there's been no accusation of infringement in that well that's true but tether the begs the question is an explicit accusation an infringement necessary should be necessary to trigger declaratory judgment jurisdiction not an explicit accusation infringement but there must be some from considering all the circumstances there must be some accusation of infringement be it explicit or implicit like the court held in the micron case where i believe it was monserrate that was you know publishing press rights a charge of infringement or at least that some something is covered by the that's not present here we don't have that here it we're outside of even the bounds we don't have something i read these letters and i felt t possibility of a judge and that's what we were trying to do without agreement or with that proposed agreement but the fact that we didn't call it a quote confidentiality agreement that you know is semantics complete as well with the package you wanted to send belief of the person receiving the letter or the subject of intent of the person sending the letter should be in the test at all and makes the test entirely too great i'd like to address it's more experience with regard to your color do you think it is now i'm sorry what color do you think it is now and when if that test would make it to gray how would you describe the color that the current practice leaves it in with all these cleverly worded letters back and forth and everybody's dancing around the obvious reality of the situation how objective is that how project predictable is that is that at least as gray it is great your honor in you know if if there is go concurrence and sandusky suggested that a court put up or shut up letter but they could have sent us a letter saying tell us whether you're not whether or not we in french and i think in that instance we would be forced to actually perform a rule of an investigation let them know whether or not they in french or example i don't own a criminal defendant may be held not guilty under a beyond a reasonable doubt standard but in a subsequent civil case based on that same activity using the same factors on a book on it's of the evidence and you may be found liable and change the  substantial controversy between more dissent so into a controversy in fact of immediate and concrete nature as opposed to just say a speculative controversy like we had here what speculative about this cou nothing speculative about it anymore but at the time when when h p filed a complaint it was purely i don't i we did was notify them of the zero two one patent we know that we mentioned a product line not even a specific product but we never asserted the that's the reason people have pets because it conveys the right to exclude there's no point in having a pet and unless you're going to assert the panties that there's all sorts of avenues outside of litigation  impeded if we adopt a bright line rule that just merely identifying and identifying some product or product line in discussions is enough for a declaratory judgment action if two parties got a room together and i said hey i you might want to buy you know you might want to incorporate the technology of my patents you know in your products they say which products and i say well your computers or your desktop computers and i have a sudden i'm subject to the third sort of judgment in a jurisdiction even though i'm not really asserting rights my entire motivation is just to talk to somebody about my patent rights and some sort of business it will work out some sort of this other than the lessons for money the fiction here is really  dispute needed to be sufficiently crystallized that the district court wouldn't be ruling on something that was merely a hypothetical dispute and so you know in these circumstances obviously you would want the district court to be ruling on products that were about to be released but here we have products that were actually released on the market i mean you wouldn't want the court ruling on a patent that had never been raised by the patent holder because maybe the patent holder would never assert it but here we have a situation where the patent holder has reached out and indicated that it thinks the patent is relevant to h p s ongoing business in a specific area and so we would suggest that there is no risk here of the court ruling on a dispute that is not sufficiently crystallized that it would be a waste of judicial resources for the court to enter came in the case and that's the touched on analysis for when there are to be declaratory judgment jurisdiction and we think that on the facts of this case that's been satisfied  so we're not talking about h p s entire server business or its entire computer business or anything like that we're talking about a specific subset of the h p server business that was identified by the district court as under the general trademarks of the blade systems e well i think that this and this panel give it a fair shot of indicating that there was specific business activity that had been identified as being at issue and we think we have that specific business activity you could envision other circumstances where you said i have a patent relating to a and the defendant makes you know a million different products and incorporate pumps and you wouldn't know which one that was but that's not the circumstance that we have here they said it's relevant to your plate servers kept the play kept us servers and that is a specific subset of the of the products here so cases that the supreme court relied on and that immune have any relevance to the patent infringement licensing type of circumstance and to the extent that the i am one of those i do by analogy because in that instance the supreme court thought there was jurisdiction even though there had been no threat of suit on that policy at that point because there are still underlying litigation to be resolved and so the court was looking at a policy commercial sales on the other right and i would suggest there does need to be some linking of the two but the linking of the two would be some affirmative act by the patent holder indicating that it tends to assert this patent against other parties and that it's