the focus upon the interactions and context between the two parties and the question of whether suit is imminent or even likely but what if there is a real and substantial dispute between them thus we scope of article three we're supposed to go by your honor that is one of the key issues here and the answer here is for the fourteen patents we can go on it and by patent basis  and you apply the supreme court's to tell me the circumstances test so that we're not simply focusing upon the precise context between the two parties but we are also considering for instance the two thousand and five public substantial dispute the second part which i don't think the court needs to reach in this particular case is frankly a theoretical one what happens when someone has a short portfolio of what happens when they send a letter such as the june sixth two thousand and one letter that says here are four patents that we think you need to consider but in addition here is a list of our entire portfolio a list that was two pages long in this particular controversy how would you be content with one or two out your own i think we would be content and we think that we would suggest the appropriate resolution is that the fourteen are all in controversy and the dispute as real and substantial and if i could your honor at the recent fort is this if we look at the full range of circumstances that occurred from june sixth two thousand and one until the filing of a declaratory judgment action the one thing that is clear is this state made it clear that it intended to pursue the people who occupied the ram technology market they said in the two thousand and five in your report that four of those participants sony hynix phinney on micron those would be the four occupied seventy five percent of the market they said absolute discretion let me take that again and focusing just on the second part of the district court's decision the first part i think mr downer a grip on which was the tenuousness of jurisdiction has been resolved by sony and i think as as this court moves forward from san disk it would be useful to disassemble and those are these the question before this court on this appeal is whether the district court had discretion to decline declaratory judgment jurisdiction that is a separate and distinct question of whether under section fourteen zero four it report quote in its discretion transfer the california case to texas honor it's not a transfer for these reasons analytically it's not a transfer because section fourteen zero four a in the case is decided under section fourteen zero four a lay out in a full analytical disciplined now there is discretion with it but there analytical discipline that would require have required the court to consider such things as who filed first where the witness is located where the documents located it which jurisdiction has more contacts with the lawsuit and in this particular case if you went through the fourteen zero for a analysis the northern district of california in fact has as many if not more contests with this case now discretion that exists to decline declaratory judgment jurisdiction we would suggest is a different issue that should be constrained by different families legal niceties and really i still have her give me over the first case such as the ability to join a party in the second followed form that could not be joined in the first fault form and that party is either necessary or it would be beneficial to have the party participate that he must be obliged nonetheless to retain it against his will having stated and that we know that this is a certain amount of discretion we haven't yet focused on how much he has really forcing him to take it when he doesn't want it here i would suggest that an appropriate resolution of the discretion question might be a resolution that similar a general to what the san dis special said that we remain if there are no additional factors beyond which those which are on the record today then we would expect a district court to accept her a station that has not  declined jurisdiction it didn't for close to consideration of additional facts but it did say that on this record on these facts we would expect a district court to accept jurisdiction on this record purpose analysis and more convenient for him if that were to be imported into this analysis it would also be the most appropriate form and i would suggest that that discretion that exists if there is a second act but there it allow us engine in tech allows for circumstances like b p chemical where the second final action for substantive and real reasons is the right forum for the action to proceed i think it's to me in your honors mit please the court i think this case is about a race to the courthouse and i think that's the rule of law that mr lee is proposing would lead exactly to that i did sent to dennis fide for four claims and two products there was no response to that letter for all we know had the parties talk to one another they would have found as often happens example to judge bryson's concurrence in the in the san disk case where he talks about i see no practical stopping point short of allowing the cleric to a judgment actions  the texas case and the california case you'll see that each one involved different patents there were patents asserted in the texas case that were not asserted in california and vice versa there were patents inserted that were not mentioned the why they're controversial there is no controversy because there needs to be there needs to be some communication between the parties to show that there's a controversy otherwise i suggest that's what that's what a different definite and concrete dispute means there needs to be an addendum filed will dispute as of the original letters when there was no response for all m apprehension of suit it doesn't tell you what the nature of the concrete of the dispute was it doesn't tell you what its contours were the rule that we have right now under this under mr lee's rule what will happen is no patent will want to even talk to a potential infringer the patentee will sue because the patentee will know that even if the accused infringer doesn't come back there is potentially declaratory judgment is talk to them and at that point they talked long they'll be communication and then there'll be a bridge or they may find that there is no dispute it often happens that when living in a potential it against talked to one another they will find that the reasoning given clear to the patent that they disagree that they are liable for whatever reason i think that is what judge price and with what that accomplishes that you know then there's a dispute dispute cannot be created merely because the suit is filed that doesn't tell you that there was a definite and concrete dispute between the parties all that tells you is there's a lawsuit of course once the lawsuit is filed telling us that the twenty four hours makes a difference which must be because you were in trying to decide that the party who won the race to the court has nonetheless is evicted from the form of ch i'm not suggesting you should ignore anything your honor i think the fact that those two suits were filed and advanced differing reasons for there being a dispute with there's some overlap with this a lot of not overlap where there are  nature of any dispute was not clear at the time and in fact we don't know whether they're not overlapping patents would continue and if the california suit were to continue we don't we don't know that because why should that make a difference because we know that there are patents that overlap your honor the question is we didn't know that there were patents that overlapped until the suits were files and i'm suggesting that  time as of which there must be a definite and concretes dispute has to exist before the time that the pleadings are filed in either case we're talking about not the creation of a dispute but evidence that there was just feeling that i recall the district courts and allison's even though he decided discretion not to consider the case and told that the second filing was evidence of something your honor the second filing could have been a response to the first filing it may be that there would not have been a suit filed had the party spoken to one another  your honor if you're talking about the discretionary if you're talking about the discretionary point on the discretionary point if you are talking about that there are lots of reasons the role that mr lay advanced the gender rule does not have as he believe that that rule will still work and i believe that in this case if you look all pride and we're all here all i think that rule is still viable that part of the rule mr dunn are still  starting point for the race will be the first communication your honor what it means is that if if the accused infringer can file a suit merely because the news infringer gets a letter or communication from the patent on or then the patent owner will not communicate the patent on or will first file suit and then we'll talk the patent daughter in all these cases will if it wants if it wants to choose a action whereas if you require communication between the parties the patent owner might it might not take that course of action i think the courts are going to be flooded with cases filed because the patent on or won't run the risk of being in a courthouse he doesn't want to file now there's also a rule that says even the second five even the second file rule maybe prefer it if the first case was filed for tactical reasons in this that the purpose of the declaratory judgment act is to avoid what they call a scarecrow issue it is not for the purpose of giving the second the accused infringer a choice of a forum that when the second filed suit when the first filed suit is filed for tactical reasons that is not within the basic purpose of the territory judgment act and will not be given preference declaratory judgment perspective and that is that if an entity a commercial entity feels at risk that the threshold shouldn't be quite as high for that person to go into court a boundary line and one inside which one might be excluded from court but when you look at the entirety of the system since it's this particular relationship isn't it rather hard issuing threats maybe not directly but through the press your honor if the test was reasonable apprehension of suit and what you say would be exactly right i don't think the supreme court in  that said it should be easier for declaratory judgment central to curt's or judgment plaintiff to go into court is what i think so you don't in one respects in one respect that they don't need to have a reasonable apprehension of suit so there can be something less than a reasonable apprehension of suit in that sense it was easier but the court set down another rule the courts said the dispute must be definite and concrete and in that sense it elevated in just in that sense the the the the ticket that you need to get into court it always had to be definite it concrete didn't know it seemed to me the only change reasonable apprehension of suit as to your honor the court all of these cases i don't know whether the case is pre med immune used those words definite and concrete what i do know is that the court in med immune didn't use those words and all of the decisions of this court have used those words and i think that again ari for it to judge bryson's concurrence i realize it was only a concurrence he talked about the fact basically that the floodgates would be open but you have to follow the rule and then he talked about the fact that there needs to be an assertion by the accused infringer and then file suit he talked about a sequence and i think if we followed that sequence we would limit the amber of cases that would be filed under this new rule we would eliminate the potential opening of the floodgates and i think we have a much more healthy situation not only for litigants but for the courts i see that my time before bringing suit because the infringer has always been able to bring suit without any special rules declaratory judgment rules are not on the same playing field as the basic law governing  because we went oh i could let me just make it three points first on the question of real insubstantial controversy i would suggest that there is no requirement of some communication between the parties the b and a report that it's at appendix two forty eight and the press release that it's the press statement that said appendix five sixty two that statement says there are we're going to go after the four people occupy the dram market we've already gone after three we have fourteen people on notice they say that we're one of the people on notice and we're going to do it relent slee there is no contact required for  honor i do a great that's one of the things judge price expressed concern about in the concurring opinion incentives but i would suggest that there's a balance and what's being balanced is in fact on the one hand the policies you identif real or substantial if you have a case or if you have a real and substantial controversy that satisfies article three and it's a case to say it is an issue of federal law then the circumstances in which you can decline jurisdiction under the declaratory judgment that should be find a discreet set of circumstances well go on i thought about your question having the opportunity to minister done or was because it can address issues that the other party can't because it is dispositively without any consideration all a more convenient or more appropriate form those considerations could drive the definition of not in the sense of chemical your honor it had issues in the second case only because of patents that worse like to be included not included and then perhaps most it has partly so that it but those parties have nothing absent other facts that just report didn't have before it should accept declaratory judgment jurisdiction it may still consider how it's been a result to cope tendency of the cases and you're on the recent state it just wouldn't fall falwell had before him at the time he decided if those are the facts then he should accept jurisdiction that's not barred him from considering additional facts but on these facts i would suggest that on the issue of