employees no offices and no clients in colorado it engaged in next to no contacts with colorado and yet wednesday when frantic moved to dismiss for lack of personal jurisdiction t court decided that those extremely limited contacts or legally sufficient to force the ransack to litigate this case in colorado the district court was pretty thorough in its order on that and then that was the end of the matter have you forfeit at that issue we have not your honor this court's decision in brownlow nine hundred eighty four decision makes clear in fact no one is specifically states that preserving an argument is preserved on personal jurisdiction so long as this is made in a motion to dismiss and that case like this one was one where the issue came up on appeal after a trial so under brownlow i think there's no question that that issue was properly preserved and is properly raised here it seems to be there because the question is whether at the time the case was filed there was fifty five cherry to its burden to show that personal jurisdiction was proper i'll also note that there was no evidence later developed that supports the five position motion but the district court and otherwise evidence a trial could be used to support you know the motion to suppress and i was assuming that would be similar here but you're saying there fi has never asserted that its injury grew out of that single dinner in any way so that really leaves us with the question of whether these contacts were legally sufficient and this is i think one of the reasons this didn't come up at trial and this wasn't pursued y of those particular context there was no nothing to be to be further aired on the issue and those contacts that the district court relied on were three medical conferences and it carries a follow up on that because i think in the civil case you would have a medical device that comes to colorado injures someone and you can see the connection between maybe the contact of marketing and selling the product in colorado and the use  injury and that did not happen here you're going to tell us correct but what would contact look like in a case like yours that would be sufficient so i  think the campbell tech case from the federal circuit is a good example of that that is the case in which the patent holder actually executed a seizure had a third party execute a seizure at a trade show that was occurring in the forum  would have to actually have something like that there would have to be some sort of in forstmann activity in the forum that was somehow targeted at sci fi so it could have it's a seizure that occurred in france under french law authorized by a french court had instead occurred at the broad more it would be a different case but of course all that's alleged to have happened at the broad moore is that the rand tax had a display where it showed what its product was and it gave away things pink golf balls and bags that is for many reasons not sufficient to sustain a finding of personal jurisdiction not the least of which these were random fortuitous contacts sci fi's alleged injury would have been no different had they not a clone and i guess just following up on that isn't it you could have had a seizure anywhere too right i mean that's that's the problem here is that isn't it true that a seizure  followed in the location of a conference well it would have to it would depend entirely on the trademark rights at issue so the seizure that occurred in france was a future that was executed by a french court based on french trademark rights so whether or not something like that could have or would have happened in the united states or recall arado or in colorado there's no evidence as there's no showing there's no promise a showing that that had happened the sole thing that c five pointed to that related at all to enforcement was the seizure in paris which clearly is outside the bounds of personal jurisdiction for purposes of this court's analysis and although they rely most heavily of someone to invoke an effect on them in the jurisdiction caused by conduct that occurred outside the jurisdiction and that's what the what facts exactly what the french caesar was here to do to call for the headquarters  gecko in the type of rights that were being asserted there is nothing that shows that ceramic text with any in forstmann actions about its us trade dress rights in colorado or anywhere else within the united states cannot be based on interacting with a plaintiff known to bear a strong connection to the forum state and on during which the court decided and twenty sixteen which is the same conclusion and in that case the plaintiffs like the five had relied primarily on due to cost and calder and this court in plain why walden controlled and those cases did not so i would suggest to this court that it simply reading walden rockwood in on stories leaves c five without any real argument that they were affected by the french seizure that leaves them with the three medical conferences at vail vail cascade and in the broader war these conferences as i mentioned were for had not attended the conferences and the answer is clearly yes the suit wasn't brought to stop the ram tech from going to a conference and giving out things all this was brought to stop them from enforcing trade dress right and there's nothing about  the conference's that that relates to to enforcement in the analogous patent case the federal circuit has repeatedly held that only enforcement activities count and that's because promotion is really just about a party's own commercialization efforts and whether you have a patent or a trademark or a trade dress rights commercializing your own product does not cause injury to someone else it's only when a company goes the next step and starts trying to exclude someone else from the market to enforce those rights that there is an injury so for all of those reasons coupled with the fact that the reasonableness inquiry of the due process clause demands heightened care for foreign defendants  we think that that saran tacks clearly has the better of the argument that there was not a legally sufficient basis to require it to litigate this case in colorado i don't know that the benton decision from two thousand and four in this court specifically held that and i don't think that that has any any bearing on that you questions they really ask and go to different different issues one is whether it's reasonable to force around tech to come to colorado to the united states to secondarily it was brought after the suit in colorado was filed and if anything it's the five was concerned about this issue a critical allowed the suit in delaware to go forward which would have eliminated this whole personal jurisdiction question from being at play but they have course chose not to do that so it was dismissed after the district of colorado concluded if you think colorado would go forward if i could briefly address the merits arguments in case the court reaches them and then i do want to save a little bit of time for rebuttal so i will i will be brief the functionality inquiry that the supreme court has set forth in the traffic's case is designed to ensure that there is sufficient room for both patents and trademarks and trade dress to exist there is a balancing so the functionality analysis asks whether the future claims in the trade dress is essential to the user purpose or effects the cost or quality of the of the patented item which is really just about a complex scientific composition from multiple elements whether that composition is the same as a pink ceramic chip implant it is simply not it point three three percent the specific pink color comes from the unique combination of ingredients that are used and by a luck style to which if you include point three three percent chromium there's nothing magic assigned to the point three three percent chromium anywhere in the patent there's nothing about the color pink that's not any evidence that point three three percent premium has functional properties different from point two five percent you know your honor there's not a pattern in fact describe the whole range from point one to five percent as having a uniform benefit so there's nothing that is specific to point three three percent and the five don't conduct in this case and which is really reversed engineered to try and figure out what the percentage was so that it could use chromium essentially as a color and to get to the same color product shows that you can see five didn't assign a functional value to the amount of chromium just briefly to note that estoppel holding that the court reached below offers no basis it doesn't even explain what sort of a stock all its imposing and it too is contrary to traffic which of course held that there is room for there to be both patents and trade routes and that taking their twenty year old patent that they have taken full advantage of have had the opportunity to take every dollar that they could possibly take out of the invention that they recited in that patent take that twenty year old they tried to convert their patent rights in the trademark rights and indeed the court found that those trademark rights were based on the functional attributes that chromium always applies that that chromium of the range in the patent describes various functionalities that are achieved through using different percentages of chromium in relation to zirconium if you change the amount of chromium you change the amount optimal if used that point three three for hip was will that that's not as they did in the pat no but it's what saran tech taught the industry because of their twenty years of exclusive of the they went out and talked to the identify point three three it was not a secret that they were using point three three and so when this patent expired my client knowing that that patent was now in the public domain practiced what was taught in the past and the use of chromium was the difference maker they specifically in getting that patent specifically told the patent office that for the first time ever they had achieved hardness factors through a very small amount of chromium within the range that twenty to one to a thousand to one anything within that range created a particular up a fact and what happened was is that when they taught the industry  that this particular amount this their point three three percent was the optimal amount when the patent became when pen expired any any range described in the patent was available to anyone to use so there would be no reason your honor that we would have to be limited to a lesser amount or greater amounts in point three three once the patent expires the entire teachings within that patent become in the public domain to do otherwise if any competitor get the same functionality without copying as was intentionally done by your client that is why why does that help competition doesn't that harm competition knowing it does if you can get the same functionality without that color but you but you can your honor your what your indicate if you were to give them the color you're giving them trademark rights that's the subject of patents so something that is functional is expressly precluded pickup from becoming a patent are becoming a trademark and what happened in this case is they try to get their pink registered as a trademark and the proposition you're saying that even if there's no difference in functionality between point three three percent and twenty two percent of whatever and if there's no difference in functionality and is trademark isn't that isn't the point you're just making the faces of the district court's opinion it seem to adopt that view rather than go into any discussion of remains for the judge to make a determination of whether point three percent as pacific and senility no i mean if we reject your general i understand understand the court had eleven days and twenty three witnesses of testimony twenty three witnesses i'm going to say three quarters of those witnesses spoke directly to the issue of chromium and functionality the other side conceded that the amount of chromium that they described in the patent claim three the patent covers this particular that anything within the range he did he looked at that range he had witnesses he had documents he had the testimony of their lead scientist he had experts that range include the point three three so we we believe your honor and i think the record reflects that he did consider all the possibilities within that range including point three three and felt at that point three three was indeed out described by  essential use or purpose of this particular ingredient of home you was to create a functional purpose he created it made it harder we've challenge them they've never said it's incidental arbitrary or a mental which is the standard under traffics if it were incidental ornamental or arbitrary it would have said that they got this patent knowing full well that they were going to get the exclusivity because of the function they chromium  they never started this with a will make it a trademark they could have done that but they made a patent bargain they chose to get the twenty years of exclusive of the through the patent they could have tried to get a trademark at the outset they didn't try that it was only in the facts and the record reflects that it was only at the point in time that their patent was about to expire or that they decided oh well we need to find another way to extend our exclusivity and it's at that point that they tried to get the trademark office to give them an exclusive trademark and he's failed in doing that you're down to four thirty can you speak to the jurisdiction short sure absolutely your honor it's clearer in our declaration of the early start of this case at the beginning promotion of those products is a justification for its trademark application and at that at the end of the paragraph through third the way down the court says the fact that saran tec is actively sought to promote its brand and its unique pink color the precise subject its disputed trademark in colorado and at least three occasions the stablish is purposeful direction so the event that a percheron colorado were events that the trademark office had suggested saran tech those types  the very type of the vents that are used by these types of manufacturers to promote and to reinforce their trademarks to their customers so they show their product they just the talk to doctors they talk to oh yeah they were to pass a person participant they weren't sitting in an audience they were sponsors for these events they sponsored these events which gave them greater access to the attendees to the doctors to the very o e m that they were selling  you're posing council's argument right they could have had all my gosh a conference in tennessee and they promoted their product in tennessee and then there'd be jurisdiction in tennessee not in colorado it's certainly possible your honor that they that there might have been other venues where they may have just shown their product but the fact of the matter is they came into colorado specifically to market ends and promote their product whether they did that in other states i don't know we never got to that at trial because we never proceeded with the discussion activity in the form in the reason i know that your honor i know what they intended to do because their counter planes that they filed in this case specifically say that they have established trademark rights in the state of colorado and they're a is stablished in those kind of players counterclaims three four and five are based on colorado state claims and you can only make those claims if you're asserting that you have trademark rights in colorado they asserted those claims and that your honor supports our initial pleading at our national to the stage all the claims that we made that they were actively trying to establish trademark rights and to enforce those rights in colorado subsequently read things on finish that we're going to take some time to respond to this short of it oh well i saw your clock was it to say sorry about that yeah i thought we could get a question and answer in two seconds but what about the forfeit your course they're not required to do much else but in this case they specifically sandbagged and specifically what they did is we believe that the fact that the counter claims that they ultimately a led us and i frankly believe judge jackson to believe that they had no longer no longer contesting personal jurisdiction because they affirm claims trademark rights under that in the state of colorado trademark infringement unfair competition deceptive trade practices under the collar on the subject there be no reason for judge jackson or are we to believe that they were still contesting the the personal jurisdiction they also pulled a witness who was affiant in the ritual the motion on the issue of jurisdiction they pulled him a trial so we never had an opportunity to the extent that that issue was still present in the case to cross examine that witness so those two activities and i never made any continuing objections at any point either at end of the case during the miller case so it wasn't until they decided that they didn't like the result in the case that they decided maybe personal jurisdiction would be a hail mary that they could use in this court to try to under the decision the judge jackson render you rely on their sandbag well good certainly your honor may not have had we known that they were going to present the issue of personal jurisdiction we would have we would have had other evidence that we could have put into the case that would have shown that they had established more contact with a lot of what we believe that the prime facia case that we established was sufficient it was sufficient and then the counterclaim certainly you know led us down the path and believing that they were willing to litigate the case and live with the result and here the result did not go the way they wanted and now where before you talking about personal jurisdiction for the first time you thank you thank you to purple to yellow to great black and that there was no difference assigned among those ratios that the claim was just the use of the ratio was what got you the benefit the second point i'd make is that the somehow the reason the device works as opposed to any other percentage that fell within the past the problem here was that the district court refused to engage with the fact that there were multiple colors and there were ranges crane's in the patent i could just the court look at the patent which is  at a one one four for a one one five five you will see there's nothing in there that describes any unique benefit or says the reason a hip implant component will work is the use of point three three percent chromium and i would also c five doesn't even practice this patent so the notion that somehow the patent precluded them from entering the market at some point with their product is just wrong they're not practicing the patent the district court certainly heard the testimony  and was an persuaded that that was good evidence we do it well your honor i think that's such a tricky question and it's the reason that we have focused on the legal error and how the court applied traffics one of the two reasons that th what will flow from from that decision judge i you had it i think exactly right as well when you asked if in forstmann and promotional activities could be conflated with that mean that defendants would be subject to trade life dress litigation nationwide any time a product is promoted or used nationwide the supreme court has cast doubt on the fact that specific jurisdiction is proper in all fifty states under any particular conduct and i think for all the reasons in the patent contact that the federal circuit has already dealt with in careful detail there is no reason that it makes any sense to conflate enforcement and promotion particularly given the consul case from this court that notes as much finally i just want to explain that the functionality and to stop a ruling that the district court erred in making applies to all of the claims and counterclaims that were asserted in this case the counter claims that were brought by ceramic were mandatory counterclaims so there's nothing that can be read into that assertion of those counter