thank you your honor may please the court this case turns on the meaning of six words except as otherwise provided by law this language was added by congress in two thousand and eleven as part of a new subsection in thirteen ninety one which provides for the applicability of the entire section of thirteen ninety one with this language the result in this case with this new language as you do have many other adequate means obtain the really dire no i do not think we do and that is based on the on the decisions of this court in prior cases that have granted that have allowed the use of the venue cases i think turn on a settled construction of a statute and determine the discretion of the district court to for example actually think that this construction is settled  then there's no extraordinary question if this court thought that there was a settled construction that would be true but i must say that language that the v holdings case relied on has been repealed by congress it specifically was tied to a phrase in that then existed in thirteen ninety one c which was accept as of the apartment and it was as if for venue purposes in this chapter and that language no longer exists then that language was just broadened instead of saying for this chapter it says for all the new purposes so how can that unravel the whole thing so there's two points on that first of all the section the entire section begins with but the entire section in thirteen ninety one days only applicable except as otherwise provided by law and our position is that the plain language of the statute means that the whole of the section has to qualify has to be qualified by that exceptions clause at the very beginning of thirteen ninety one well if there is no definition of residency in fourteen it would be if there is that you can say a step as otherwise provided by law reading as otherwise otherwise provided by law flies to common law i think it does apply to judge made law i thought the first of all it is an interpretation of a statute so i think that except as otherwise provided by law include that wasn't a law the holding whether right or wrong changed the state of the law so when congress enacted except as otherwise provided by long language it was not operating under the assumption of the existence of that legal standard you're relying on from previous holding well with that the question then becomes a twofold question the first question is whether law in compas is case law and the second question is whether v holding relevant case law and whether it can be a settled decision i would direct accords to attention to a case like andrews or says hovey which is a supreme court case from the nineteenth century a patent case which it says they can question regarding the construction of a statute in the united states concerning patents for inventions cannot be regarded as judicially settled when it has not been so settled by the highest judicial authority which can pass upon the question and there are two levels there and refusals of search yari have no presidential weight because there are there are hundreds of even up to thousands of petitions every year that the supreme court denies for all sorts of his argument was by the highest court and since they view this is what you have to get in more depth surveillance in front of the panel applies to case law and only applies to case law the supreme court but the problem is in be holding reclaimable and said the change in the statute from four code to be holding change the interpretation that ought to be given and the outcome and the supreme court's never spoken on that so where is the supreme court case came out because they took away for purposes of this chapter and replaced it with for all purposes so it's hard to say that that was a repeal in the form of a purposeful intentional conveyance of narrowing we the language in the statute was for venue purposes which was general and applied outside the chapter that was the language of the supreme court and for co said despite its generality despite its applying to the entire united states code it didn't have the in there but it was not limited to this chapter the supreme court said in that case that the general would not control the specific in that case and it was in the full reasoning of view holdings was the narrowness of the language that they targeted this chapter and that the change in language from for venue purposes to for purposes of venue in this chapter which i must say is an art that our we do have and we want to preserve that the evil things might have been wrongly decided but we understand that that's not for this power but that language was specifically repealed and it's the generality of the language that returns things to the status quo ante but now we've gone one step further and congress know that not just for the new purposes for all that  u so so clearly all does not mean and that and the my colleagues on the other side concede on page eleven of their brief that if there's a definition elsewhere in the united states code then the specific controls over the general there's also thirteen ninety one d thirty nine b one d provides a different definition where there are multiple districts in a state and those two definitions if you can read them and they're not exceptions there's no language of exception in thirteen ninety one d c but district courts in fact i ninety one c and if you don't take that exception if you don't have that implicit exception that all doesn't mean all that it subject to subject to implied to that to the traditional rule that a specific controls of the general thirty ninety one d has no meaning and that's very similar to the situation we have here with fourteen hundred b because fourteen hundred b has almost no meaning and indeed holdings even said it was a little strange holding said that the entirety of fourteen hundred b really doesn't have any effect or at least the resident and under this for all they knew purposes apparently if the defendant if the court has personal jurisdiction over the defendant and he says that in a state with more than one judicial district for purposes of venue under this chapter in a state which has more than one judicial district and in which a defendant that is a corporation is subject to the personal jurisdiction at the time the action is commence so that means that that would be under c it would be resident of that s such corporation shall be deemed to reside in any district in that state within which its context would be sufficient to subjected to personal jurisdiction if that district were such a separate state so now if you apply the definite if you apply that definition of a corporation that is for example has all kinds of contacts with the southern district of new york but has no contacts with the western district of new york that corporation would not be subject to venue in the western district of new york even though if you applied the definition in thirteen ninety one c two it would be subject to jurisdiction in the western district of new york because the test under c two is only if a defendant in any judicial district in which such defendant is subject to the court's personal jurisdiction there still would be personal jurisdiction over such a defendant because the personal jurisdiction would be determined by federal civil procedure for k one and that would be the state new york state's long term statute that obviously in new york statute can as the only thing i understand about d c is the dea just tries to explain what you do when you have more than one judicial district in a state and hell you should choose in which judicial district there is corporate residence and that's only understand venue what why is that a problem you have see to be slightly more general than d c says we're going to get more specific in areas where there is one in one district i agree i agree it's a specific controls to general and that is exactly what i think the same principle should apply filters no definition if there were a definition of corporate residence and thirteen ninety one we wouldn't be here this wouldn't be a problem so i do think that the that's goes to the question of whether case law is war and on that point i think it's relatively clear that the supreme court has said over and over again the case law should be considered law for purposes of the of the of statutory interpretation that is  point that has been made over and over again so for example a good quote is from i don't like but you and ok let's just set that aside for a second so there have been by my count i of five as best as i can tell that have been introduced in the last decade in congress that were your marked to correct what you think it's wrong with the current state of the new post  holding so why isn't the fact that congress keeps introducing these bills and in each instance i have no doubt in my mind what you think of legislative history but in each instance nonetheless these bills are generally  accompanied by a report from the community and each of these reports expressed it talks about the holding and the need for including the two most recent bills which no doubt you're aware of the house and the senate bills in two thousand and fifteen and the need for congress to amend thirteen ninety one c m particular so why isn't that pretty strong evidence that even congress doesn't believe the argument that you're making in front of us today so i think first of all obviously this  alexander versus end of all that congressional inaction is not is be given very little weight in the interpretive process so with respect to the post two thousand and eleven statute i would say you give them very late very little weight in the interpretive process i'd also say that this is not uncommon for the for this court in the supreme court to have issues before that are also pending on capitol hill that happened with the injunctions in e bay versus merck exchange the respondents brief anybody versus make market change talked about bills that history suggests that's not the case because they keep contemplating changes directly to thirteen ninety one c so it would seem strange if they think they fixed it all in fourteen hundred that nowhere and all of this with a have acknowledged that instead everybody would be talking about this screwed up the holding decision i mean gosh read the two thousand and fifteen report it's pretty castigating of the ve holding decision which is kind of surprising to me it's kind of like you know you make a mess in your is actually the holdings because the holdings itself said that you needed to be no legislative history and no legislative intent and no clear legislative intent or any reports or any indication that congress intended to change at least at least four supreme court holdings said we're statutes that you fourteen hundred b has been interpreted as being quote the sole and exclusive provision controlling venue close quote in a particular class of actions fork over then the entirety  i'd like to start with where this dispute belongs and sort of echo back on a couple of comments each of you are making if one reads the policy reasons that echoed throughout not only the amicus briefs but the petitioners brief because well this is a dispute about policy and it's a dispute about the eastern district of texas and it's coming out of a case that is in the district of delaware which is my client's state of incorporation so starting is enough to lead this court to reconsider its clearly set a precedent as opposed to letting congress deal with the situation from a policy point of view it ought to at least come up in a case in which someone in the eastern district of texas is actually being put out by whatever is going on down there in fact in this case throughout the petition you someone who is still here it would be well preferably i cuss from personal point of who apparently in front of this court is convinced that it's suffering irreparable harm by litigating in delaware opposed and said full speed ahead so earlier this week the district court judge issued a martin ruling that frankly if anybody's being irreparably harmed by being in delaware in this case in this forum we see it certainly could have saved the dischord a lot of effort in litigating the case so i think any suggestion that there's any kind of a rubber ball harm to the petitioner here is is completely without merit and secondly to the extent that what's going on in texas or anywhere else but texas is obviously the thrust of the amicus briefs in a lot of the rhetoric and i think accounts for the ample attendance this afternoon there ought to at least be facts before the court that a stablished something going on there has affected somebody in the case and the normal considerations both jurisdiction and then you about the pla choice and the interests of the host form we are not like many of the decried plaintiffs going to other venues because we are in our state of incorporation which gives delaware a much greater interest over this case than all the other hypothetical cases that might have come before this court and your honor as you pointed out congress has been looking at this throughout this entire is actually an indication that the holdings did exactly what the language that congress adopted in one nine hundred eighty eight compelled in the current congress looking back on it thinks that maybe some changes might be made because they didn't really anticipate what came in congress has been aware of from a policy standpoint i mean let me just ask you is consolidation because certainly it's true in delaware as well but certainly not to the extent that it's true in each texas consider mormon it's number of different measures and held hearings on the need for specialized trial courts and patent pieces and in each of these cases it was always judged by in terms of specialization it wasn't putting district court judges up with technical backgrounds but rather just consolidating a large number of cases to give individual judges greater exposure to patent cases and hasn't that defacto been what this the new status statute end up creating is exactly what i mean look their license should be plaintiffs for going to texas delaware is an excellent example of some i know you want to call it scale economies or whatever end of the bench that is a there's a deep bench in patent law and i don't think it's unfair to the district court judges elsewhere in the country to say that it that eight eight four eight court that does not get a lot of patent cases a patent case is an incredible both in the amount of time that one has to put in on it just because it's all frankly the tendency of having litigators to fight over every single issue instead of instead of cooperating but also just that the body of law is so substantial that the burden on the court and the courts clerks to be able to keep up with the issues is tremendous and i think that there is there are some advantages in true that's this all i'm not saying this is right or this is wrong either of these systems are the one that i think we ought to adopt but what doesn't this feel like something a legislature should do rather than something we should be asked to do exactly and to build on that you that the other point is that the legislature has so many different options available and if one traces throughout the time period before the two thousand and eleven act and since then and looks at the variety of options they they stray from staying for somewhat broad to getting incredibly narrow to carving out special categories for certain kinds of plaintiffs so it might be a more restrictive defended centric system but universities small inventors you know the provisions that say would allow the forum in the in the plaintiff's home if that's where the invention was made or that's where the plant that actually makes the product the invention is made that the ways of dealing with the problems tempered by the fact that some of the problems are not problems they are benefits that is available to congress is it's far bigger  wait for a case where someone is actually suffered some injury that you could factor into the decision as opposed to someone who overheard jackson or our request is still litigating in delaware when delaware could have been stopped at and then answer any questions the court has but the legislative history both in the house record and in the ale i two thousand and four were board mail i pretty much wrote most of what showed up in the statute seven years later that that the two rules that govern under a particular federal statute and then it cites the ala i study recognizing that there's over two hundred specialized statutes in fact the l i would would like to get rid of many of them but congress in adopting particularly with for purposes of of i'm sorry with the for all the new purposes is not displacing any of those two hundred plus special venue statutes it is providing a definition to replace a definition that was previously  supreme court interpreted what congress in one nine hundred forty eight meant by reside and when it did that in fork of it basically said that in forty eight they used reside as a synonym for and habit so they went back to the original judiciary act in we're looking at what congress did in in in seventeen navy seven i think but it wasn't the supreme court determining anything it was the supreme court interpret what an earlier congress meant and there's absolutely nothing cite in the petition or anywhere else that suggests that the congress in two thousand nine hundred eighty eight or two thousand and eleven is not allowed to substitute its judgment for what a word should mean the word reside is in fourteen hundred b and it has not been displaced we contend venue is proper here under fourteen hundred feet not under the general venue statute it's now in thirteen ninety one b it's under fourteen hundred  but as of two thousand and eleven what reside means in fourteen hundred b is what the two thousand and eleven congress said substituting its judgment so that it's almost like of a claim construction the claim stays the same the claim positive by your standard exactly your argument so let me give you a hypothetical because maybe this will help me understand because mr duffy says and i don't think he's wrong about this except as otherwise provided by law could possibly indicate a clear supreme court law point so forget the whole thing ok let's suppose the only law on point is something like for co and what for co says this is my hypothetical world don't dispute the facts with me what for co says is the word resides in fourteen hundred which is not to mention all this time not fourteen hundred of the use the word resides for resides in fourteen hundred a patent special venue statute mean state of incorporation a principal place of business only full stop and for co is the only law of record ok and now suppose you were actually up here trying to tell us to look at this statute and figure out what except as otherwise provided by law and you are trying to tell us that that this actually means that the thirteen ninety one c definition of residence has displaced that supreme court precedent is that what you would tell me here would you that that the supreme exception of the was provided by law could indicate a consistent long term supreme court decision on this the acceptance otherwise provided by law even in that hypothetical would still not lock the one nine hundred to two thousand a congress assuming hypothetically there was no one nine hundred eighty eight congress and no the holding would not prevent the two thousand and eleven congress from not displacing the statute they haven't revoked it they have been displaced it is still the patent statute but they have we will change them all it wants rooting them out individually would be very difficult and that legislative process might be quite difficult because everyone has a constituency where they were also concerned about missing so yes yes especially when many of the new statutes  jurisdictions so it times it can be very confusing as to whether to even a venue stats or not but all that's happening is a congress in in two thousand and eleven is saying i'm not displacing that statute i am changing the definition and congress allowed to change the definition and there's nothing about otherwise provided by law that keeps congress from changing the definition forgive me are you saying that if there were in the patent the new statute express specific definition of president that different from thirteen ninety one see that thirteen ninety one c should not unless read as having overwritten no i think that would be as otherwise provided by law what we're talking about or statutes where congress w adopted them simply said birds were exotic and did not did not explain in statutory language what it meant in those situations and up i submit it's not just the supreme court i court enforcing that statute has to figure out what congress meant by reside not what reside out of me that's what the supreme court did and for go it said what that the nine hundred forty eight congress mean the two thousand amendments even if there was no ve holding in between is simply congress and the bells and eleven saying i can lead fourteen hundred b in force along with all the other ones but i as congress can change the definition of what resides in that's exactly what they did thank you thank you miss you not the  there i just have four points that i would like to make the first is this issue about whether law includes a decision a lot of the supreme court interpret in a statute i first like to say that the supreme court in warren versus united states that's three forty us five twenty three is said that the term law in our jurisprudence usually includes the rules of court decisions as well as legislative acts it cites actually erie railroad versus tomkins for that proposition which is interpreted the rules of decision act in other statute in title twenty eight also well the statutes so i think that's the first point that i wanted to cover that was i think part of the colloquy here the second part that i wanted the second point i wanted to make is that the holdings one of the arguments are just was not made in the holdings was the my colleagues on the other side side said but it was only because that's when title twelve twenty eight was an act into positive law that usually does not have any substantive of fact they were originally part of the same sentence you can see that by reading the stone one case and the court in stone night because they were part of the same statute they should be interpreted in pari materia four thousand nine hundred sixty ninety four uses the word residence and there's never been an argument that that has been changed by congress that with the concept of residence in six hundred ninety four which is  service process of yes provision that allows for nationwide service of process if there's accident bridgeman within that within that district and so those two i think this argument was simply we've got the brief from the holdings and it simply was never made in the holding so there's longer is the law because the statutory language has been repealed by congress but that's not what you just said what you're are the point i'm trying to tell us and the point you made in your number two point right which is there was an argument that wasn't made in the holdings that's ok and it is true that  we definitely want to maintain the up the up the opportunity to perhaps present non bank petition to the court although the language and the reasoning of evil things very type very much tied to language in a statute that doesn't exist hasn't existed for five years so dramatic change and i would submit that we should be held to the same standard in other words we do not need to have any kind of clear legislative history to prove the congress meant what it said in the two thousand and eleven x finally i would say with respect to the failed bills that dispositive decision a law that congress was meaning to leave in place because it wasn't even on the words of the statutes as you keep telling me and then the whole thing is a federal circuit case i don't i just my problem with your argument isn't the legal points that you're making necessarily it's more like the facts because i don't know what decision a law existed in two thousand and eleven that made it clear congress meant to leave in place that state of the law that you're congress does that that we should that you should try to freeze the law because the failed bills in this case that often happens that there's a policy issue that comes up one issue that comes up of legal issues congress might peepin sidorov legislating on it but this court might also be considering reconsidering its own precedents or in light of new legislative changes considering what those legislative changes mean and just because congress is also considering something on congressional on capitol hill doesn't mean that this court is disabled from interpret the new language in a new structure ok my question is i'd like you just to spend a minute if you don't mind you also raised a personal jurisdiction argument and you have stressed it so i'm not sure i should take away from that when you spend a minute addressing it or tell me be your meaning to give us i don't know you know we are definitely not meaning to even out it's actually part of the of the venue argument because the venue statute even if thirteen ninety one c two is read into fourteen hundred b thirteen hundred thirty nine to one c two does require that there be personal jurisdiction over the action over the entirety of the action i think is is that is that if if that argument is right then there is no personal jurisdiction any district if you're selling it or are you suggesting that patent he has to sue you in every single district separately for only the products you sell there we're not suggesting that because we actually think this is exactly why congress wrote six hundred ninety four if you go back to the stone case i think this is problem in other words we're trying to resolve the problem the congress solved in the eight hundred ninety seven statute the congress saw this problem a venue and it dealt with it together in one section that's now split into two things and it has a service a process provision and then d under forty one which is we're using the delaware long arm statute that is how the respondents in this case use that savage personal jurisdiction or it can be established under a federal statute and then the minimum contact is not to delaware it's the united states and that's forte three so that is the that is what would apply if sixty ninety four were to be used so in other words congress has already dealt with the situation that if there  infringement and even if it is there certainly are hypotheticals you could imagine where the infringement or products come to a district where there are no minimum contacts and that's exactly what congress wanted to do in the eight hundred ninety seven statute that's now split into two pieces that's why they should be read in pari materia that's why the supreme court's decision for co makes sense it makes sense because congress dealt with this whole problem as an integrated whole case but going back to personal jurisdiction because  understand where is their personal jurisdiction you know if i understand it right that's your complaint was only two percent of your sales go to delaware right and i assume all the rest of your sales are divided among all of the states in the country most likely roughly speaking nice so if your complaint is there's no personal jurisdiction over you in delaware because only two percent of your sales go there there have to be roughly fifty states i mean i don't i don't understand i mean where is their personal jurisdiction over does that mean there's no personal restriction over you anywhere well there's well there would be obviously if we used the traditional framework the congress established because all we would need is that the defendant with the plaintiff would simply have to find a what if you were mcdonald's i could see you in any district right under that logic the i don't know mcdonald's corporate structure i think there's a franchising methods let's take maybe starbucks maybe can we take starbucks because starbucks i think owns their store so that's a regular and established place of business i think and if they are committing acts of infringement there then yes you can sue them in each and every district that they have a starbucks and we're in only one of those districts and see them on the basis of all of the infringement committed and all the district that is right because then you'd be using sixty nine for you would not use the state long on statute to serve process you would use the federal statute which is sixteen ninety four and then you would be able to serve process across the entire united states and the and the jurisdictional and the due process analysis would be a federal due process and else was not limited by the by the that particular stance last question do you think this is something we can do with the panel or do you think in light of the prior precedent this court would have to be in or i definitely think you can do it as a panel because this is new statutory language that has never been interpreted by this altruistic personal jurisdiction over the personal jurisdiction point i do think that you can do it as a panel because our case is distinguished from the beverly hills fan case and also there been intervening supreme court decisions or been a quartet of supreme court decisions on personal jurist personal jurisdiction and at least two that are deal specifically with specific jurisdiction which is what  is at issue in this case and those tests are more restrictive those didn't exist at the time of the panel decision in beverly hills fan so we're not only distinguishable from beverly hills fan but there's also been intervening developments in the law of personal jurisdiction