us history where a u s district court has abdicated jurisdiction over u s patents and told the point if they should go in and force those patents in a different country it what was the evidence that the district court relied on  making this historical determination well the only evidence that was presented in defend its motion on the adequacy of the canadian forum is a declaration by the defendants u s attorney that says you know i went on the internet and i found this website of the federal court of canada which says that that court has jurisdiction over patent trademark and copyright claims well i know i'm a little unclear as to what happened here i'm not sure that it's clear from one half of what is the connection with canada were these designs created in canada and of the infringing allegedly infringing product in the shipped to the far east where the products were made  what do we know about this i think we know very little about that the designs as far as we're concerned were originally created in hong kong where our client created these original designs  design we know very little about where those designs came from what we assume that the direction to copy the original designs from our client was probably of based in canada the person who was in canada made the direction to copy those pieces but those with a record doesn't show where the signs were created i do not believe that the record shows where the designs were created so you know that website is referring to canadian patents and canadian trademarks and canadian copyright claims but the main issue in this case is in every other case including the seven circuit cases that defendants rely on the defendants who for for months in ian's dismissal provided an affidavit by legal experts from the target forum in the st affidavit submitted by a turkish attorney and law professor was still not sufficient to prove the turkey was an adequate form because the affidavit failed to address key legal issues in the plaintiff there didn't offer a competing affidavit but the defendant's motion was still denied because the defendant bears the burden of proof on form one convenience case and all we have here is a web page from the federal court of canada the district court abused and into your patent claims you have some other place to write a copyright and trademark claims that's correct i mean is there any question about whether canada can can hear those type of claims and great relief on those type of claims and would that be overlapping with your p claims so first of all they would not be overlapping with the patent claims because the two patents that are at issue in this case cover different furniture designs than the ones that are covered by the trademark and the ones that are covered by the several copyrights separate secondly to go back to earlier question the trademark simply well the trademark and the patent claims we don't believe can be adjudicated in a canadian court i mean we've have in fact there was just a case that came down from the southern district of new york yesterday see the issue is the defendants will very suggests for an infringement be the subject of the us suit but there has to be a predicate that it states what is the predicate act here in canada that's the problem i'm having i agree with you i believe defendants would say the predicate act would was there you know the defendant c e o s or whoever whichever individual said hey we like these furniture pieces maybe someone over there and if you can make some identical furniture pieces and we can sell in that it cheaper we don't  that's exactly correct we don't know that that happens now but theoretically under the berne convention there is some arguable claim that canada could hear these copyright issues but of course we believe there's still not enough evidence on that point because they never s submitted as i said an affidavit of a legal expert we have no actual hard evidence that any court in canada has ever heard a case involving furniture design copyrights we just don't know if that is ever happened before and so given all these other cases where legal experts were required and there was evidence there was evidence in these other cases where a legal expert said yes i've seen these types of cases this other court would handle it in this case we have nothing other than the u s attorney making arguments as to how canadian law would  discretion by failing to hold these the defendants to this burden of proof we first of all the district court artificially lowered the standards to the general rule is that the vexation and oppression of a defendant must be out all proportion to plan is convenience or burden but  that the district court here just said all the vexation in the oppression must outweigh the lowered to a preponderance standard which is simply not true the public he also said the public interest factors do not compel denial of the motion but of course it's defendant's burden to show that the factors actually lean towards granting the motion because an equal balance of the factors will always favor the plaintiff foreign choice and they like to say that this is an isolated turn of phrase with the opinion is replete with uncertainty they say perhaps canada could apply the laws the district court never actually found that the canadian court would actually apply u s law he just said oh it's possible that maybe canada could apply those laws it falls far short of meeting the burden and on top of that there's all this other uncertainty while familiarity with the law would not pose a problem if canada applies its own law and the possibility that it doesn't apply its own law i mean with all these if some possibly some probably isn't perhaps is there's just no way that you can ever find there's an actual proof here that that meets t conditions for dismissal a drastic remedy to dismiss a complaint under this form not convenience doctrine and we have numerous other cases that have identical factual scenarios the who's the armando bermudez case from the southern district of new york all  parties in that case were foreign ok all of the parties were foreign and they had sort of trademark and copyright claims and yet in many of those cases just like greene like capital motown records many of these cases the defendant said hey you know the dominican republic they have trademark and copyright laws  hey you know israel they have trademark and copyright laws but in each of those cases just saying that was not enough all of those courts held you haven't proven anything that they actually can hear us claims and there's there's obviously no way that the canadian court can hear us patent claims and u  trademark claims and most of the thirty's are pretty clear on that avenue the district court also abused its discretion by putting this erroneous view of the proportionality requirement again the oppression in the vaccination must be out of all proportion to far more convenient for us and traveling to chicago in translating documents would be unnecessary expenses the form one convenience doctrine does not exist to allow and now enable a defendant to avoid all costs associated with defending itself and on the same point the district court didn't even find oppression or vexation the plaintiffs have similar cause you just said that the plaintiffs would have similar costs in either form so the defendants cost would be higher obviously if they had to travel anywhere other than their home form that's not an appropriate comparison i mean the defendant's argument is not going to say well the oppression vaccination is not an absolute requirement because us form is not actually convenient to them you know because they're traveling all the way from asia but there are no cases that support this claim that you can entirely disregard a pop up plaintiff's convenience or even that you're supposed to consider it as it is this form actually convenience of the plaintiff plaintiffs get a presumption of convenience because plaintiffs do not typically file inconvenient lawsuits you can overcome that presumption with vexation and oppression but that didn't happen here and we also have several cases that say defendants cannot rely on any inconvenience to the plaintiff and witnesses whose expenses plaintiffs will bear and another case as nothing prevent a plaintiff from burdening itself with an inconvenient for so in the end what we're left with is the defendants are trying to create a new rule of foreign infringer whose base near the united states can get out of jail free with a four month convenience doctrine as long as the foreign defendant is close to the united states and the foreign plaintiff is farther from the united states and this rule would destroy the incentives for foreign companies to protect in force their intellectual property rights in the united states or a company based in asia if they sell more most of their products here in the us it's a completely reasonable for them to obtain patents here obtain copyright and trademark protection in this country and bring suit in this country if someone is violating an infringing those property rights and it would be wrong as a policy matter so for example let's say samsung an asian company soon a canadian company like research in motion for patent infringement in the eastern district of texas you don't defendant proposed rule and the district court's reasoning in this case would say you know samsung you're foreclosed from suing the united states because you also have canadian patents you can just go sue them and kick canada because you know it's not really convenient for research in motion they have to travel all the way down to texas to defend itself that's the centrally what's going on in this case and this court should not a tough defend its new rule it should recognize these words have meaning the form known convenience requirements of oppression and vexation out of all proportion to a plaintiff's convenience of burden they cannot just be disregarded entirely just because a plaintiff is foreign and happens to reside farther away from the united states than the defendant the district court also abused its discretion by finding a reasonable balance of the factors the defendants can see that many of the factors do not favor them and so the only issues are the ease of access so they complain about transporting documents and the costs of translation documents are not even transported anymore they're just scanned in shit and produced electronically and eighteen months before this very opinion the very same district court recognized you know the ease of access to hard drive and electronic data storage makes it pretty easy for that chinese entity to produce its documents here in illinois the other complaint they have is the cost obtaining attendance of willing witnesses and it's really just not that difficult to travel from canada to illinois it's of many cases recognize it's a very short journey compared to what the burden the plaintiffs are taking i see that i mean my title for my rebuttal so i will don't see that you established any connection between the copyright infringement and anything that happened in canada there's no showing that the sign was made in canada certainly the furniture  wasn't made in canada and the united states wouldn't enforce a copyright claim unless for some connection with the united states a credit pact of the united states i don't see the basis for assuming that canada would behave differently what's your response to that we are going to i believe that first of all it's not necessarily something that came up at the trial court level but i think the presumption and the entirely reasonable presumption is that  designs were created they do not show that there were created can correct the record does not show that i would agree with that i would believe that i believe they were i know obviously looking at it reasonably see guys located in what we have to go with what the record shops so why is it that where no designs were created canada where no infringement took place and can there were no manufacturing took place in canada what basis is there for believing that the canadian courts would in force  copyright claim valving infringement of the united states well there's two issues there first i believe the canadian courts would enforce if they found an infringement they would force it against a company that's within its own  physical jurisdiction and watch i mean what's the basis for the united states wouldn't do that right you know it's if there was no connection between infringement in the united states no design no infringement  entertain a copyright time right what if the copyright claim were against a united states company and i was speaking hypothetically i suppose if the united states company had a foreign designer come up with a copyright design and it was manufactured only out of the united states and sold on the outside of the united states i would still think the united states court would take jurisdiction that would say we have inherent authority over what  just that and well from my reading of the u s cases is that you can't have a copyright infringement suit here under u s law unless there's a predicate act in the united states ok well then that is your reading of the course and i don't necessarily have an answer to that honestly as we've gone through it i think both parties assume that well yes that's a problem you're asking us to assume the center a canadian to instruct that these designs be manufactured i believe that instruction wouldn't necessarily have thought i might be wrong and there isn't anything in the record showing that anybody in canada conveyed that instruction to somebody in asia or certainly that any designs were created in canada we don't know but i will admit that the record did not get that specific into who specifically who didn't see the guy ordered that certain furniture designs furniture orders be made and i don't suggest that that is yes a very specific issue but i think looking at it reasonably it was someone who happened it was someone who was employed by c d i and that's a natural it's a natural conclusion from the facts that are before the court if you see the eyes employees are in montreal  come up with that i think we know that by the fact that you know the way in modern company works that if you all your employees are in a certain place a company doesn't do something without its employees some of it employees ordering that to be done well that could have traveled to asia and and worked on the design in asia right i suppose they could have but they would still be you know canadian so instead of a canadian citizen travels asia and me to a thief people and asian asian people say look we've got this great new design why don't we implemented and they agree at all that in asia and the canadians that flies back you think that that's just because it was canadian citizen involved in that discussion and it's enough to be sued in canada i don't recall the case we said to that no i don't know that we started one said it was enough i think the presumption was if you have a canadian company the courts of canada are going to have jurisdiction over it and that's as far as  nelson's went and quite frankly i didn't really realize that there might be a problem and i didn't come up in any of the briefing to this court with that might be a problem and i understand if you have a concern about it and to that i would simply say where it was the case falls the is opposite a plaintiff is normally entitled to sue where it wants as long as there's personal jurisdiction over the defendant you seem to be assaulting the exact opposite role model the game i think i'm asking the court to follow i don't know who has funded that i believe and as i saw this case coming in i believe that that was enough level of a predicate act in that in that country you know we had created technologies case that sort of explain the whole reason why a foreign company a foreign country would force  and remember that we're comparing two potential trials in this chicago in montreal therefore the only thing that makes sense is a comparison of say hillary's travel costs between hong kong and chicago with hillary's travel costs between hong kong and time much money i mean it's insignificant if you're talking about travel costs to go from montreal to chicago it's like litigating a case in the district of texas when you're headquartered in chicago or d c or s rocks is probably less but it is a real cost that weighs on one side of the issue that doesn't weigh on the other side and so we're talking about travel costs we're also talking about the costs of moving samples where not only documents which can what evidence is there the any of this furniture ever was in montreal i mean the furniture's in and illinois already gets and that's why you're being sued for infringement you're selling furniture and l annoyed that they claim violates their design right now i'm not talking about the furniture that's already in illinois i'm talking about what evidence is at the montreal headquarters of c d i the record doesn't show anything about any furniture or potentially infringing furniture being montral it's shipped from the far east to the united states right in the normal course of sales yes but in order to get it for a trial it still is going to have to you know arrange for it even if you know it's prototypes and things that are were designed unless i'm presuming that it was happening in montreal which i think is a reasonable assumption  agree that you know the furniture is not produced and in canada as you said it's produced in the far east and transported over here as a third issue defendant raised the creative technologies case and i just like to point out you know in that case both parties were based in singapore so of course the predicate act wasn't singapore because all the products that were manufactured in that case were manufactured in singapore the copyright infringement that was going on originated in singapore in that case so it made sense in that case to dismiss that one over to singapore and then finally defendants raised a point about also physical samples and prototypes again this is this is there's very little on this in the record but we just wanted to also point out you know how kind of ridiculous this argument is on its face because the defendants travel into the united states multiple times each year this is alleged in our complaint and we serve them in las vegas at the las vegas furniture show they travel voluntarily the united states at least three times a year with dozens of furniture samples like whole show rooms hundreds of square feet of different pieces of furniture that they voluntarily bring in in the united states to sell their products and to market them and so then to say that one time bringing you know maybe twenty five samples to chicago would be a significant burden when they do it three times a year and by the way they bring it into las vegas in north carolina both of which are much farther than chicago for the montreal is from chicago  so we just think that this argument about framing bringing furniture samples is a little bit belied by their own actions so with that if there are many any other questions i'm happy to yield ok thank you