any explanation or analysis as to how these allegations actually conflict with the congressional purposes and objectives of the pattern that point conversion suspect missed the reason why no such fact the support because the police have not answered the complaint this affirmative defense of conflict preemption has not been raised and it cannot be raised by the courts so therefore it was procedurally pre e the district court provided two reasons point conversions put up the claims should be dismissed and neither of which align with conflict prevention law first the court found that point conversion a determination of patent law issues and therefore found them preempted however the supreme court has made clear that the mere presence of a federal issue in the state cause of action  supreme court case and gun which talks about the four prongs the gun factors which must be satisfied in order for a case to arise underpass without saying why they were conflict free so the us supreme court gun as this court did in india canada says that the resolution of a patent issue it may be vitally important to the particular parties but something more demonstrating that the question is significant to the federal system as a whole is needed but don't you if you if you're if you're the district court thought that your counts one through three under a  based on an underlying allegation that the use of a points grade point based reward program would expose customers to litigation liability and the district court thought that there's no way you could make that allegation without showing that you were right on the underlying issues why did the district court get it wrong because the issue your honor turns on the diminished value of the product at the time of sale it seems as though the district court may have put the cart before the horse there the issue of the duck and diminished value it happens and what the customers knew at th but they knew that there was going to be a problem with the security system in two thousand and eight so at the time of sale let's say a customer bought one in two thousand and five they didn't know that it wasn't going to work until two thousand they didn't know it was going to work in two thousand and eight but the seller did a t t did and courts have found that that is an inherent diminished value meaning when they purchased the product at the time of purchase they were buying a product would say soon would work through two thousand and eight but they didn't realize that it would not work in line and i thought year but i thought that your claim was not that the product wouldn't work but th customers would fix would be exposed to litigation liability young of that they could continue to do so but they are it is encumbered meaning that the value of the points transferability had a parent value that is higher than those that cannot so being to being able to transfer points across program boundaries being able to transfer from and exploit the delta miles from delta to choice that that has a value but the way in which the apple e's are offering these points they cannot be transferred in the manner in which they're saying without subjecting their conversions yes conversions your honor is trying to is a software development company so we are trying to enter our software into the marketplace and so in doing so and this ties to the declaratory judgment action that we are trying to seek your honor is we tried to send the letter out a notice letter and putting the world on notice as we are allowed to do for the federal right to put the world on notice that we have a license to a portfolio of paths and in doing so we've what we found ourselves in federal court being sued under the patent troll prevention act so we're trying to market our product commerce and we're unable to do so when the apple lease are telling their consumers and their customers to go somewhere else when in fact they're supposed to be directing them to us which is what we're trying to put them on notice and it's often the case your honor there's a there's a case that this court had recently transferred to the federal circuit inspired development and it was decided recently by the federal circuit in two thousand and nineteen but it's often the case that a license a particular exclusive license benefits from the grant of the license regardless of whether or not the infringing product is actually created now granted point conversion such as have software but the point is is for example if the product is possibly but not certainly infringing an entity may still want to share a license to avoid the uncertainty of the litigation but don't you have to through don't you have to make your claim stick on litigation liability for the customers don't you have to show both billet each and likely infringement your honor i respect to i respectfully disagree with you in the sense that these patents have been issued they have been issued by the u s and according to microsoft l four l in two thousand and eleven patents that have been issued like the ones that lincoln versions don't you have it wrong and they're the ones you have to prove that they're valid and that they are likely being infringed by what tropical paradise resort is telling people your honor i believe that  standard again because these patents have been issued there is no question as to their validity at this time the only time a in the invalidity is in question is when the athlete answer in a certain invalidity affirmative defense which at this procedural posture has not happened and in respect to you know assuming infringement at this procedural posture the allegations as stated in plaintiff's complaint must be taken as true so that much has to be assumed at this at this point because neither defenses affirmative or otherwise can be assumed by the hotels rapidly have to run the risk of wondering whether or not it's going to wind up in federal court again being sued under the patent troll prevention act have a question and this is judge how the same new fans have facts i know you didn't ahead there are so many issues that i disagree with with what we've just heard but i want to point out the two fundamental aspects of this so there's no confusion cases such as  are not relevant to this case this is not a case of such a mandatory stitching the issues were not there's conflict preemption there was clearly jurisdiction here because choice hotels had followed a decade accion to declare to one hundred and seventy four patent the case law that the court which should focus on what the trial court focused on is a conflict preemption law when you look at that law one thing it's done that lee keeler and judge hall clearly asked the right question why have you not sued pat infringement and the answer is because they can't they have absolutely no right to enforce these patents they've and made it repeatedly on appeal and they just did so moments ago and the ramifications of that are clear because what they're trying to do is force patents through a state law claim and which they have no right to enforce and there is absolutely no case that they cited no case that has this and is fundamentally contrary to the patent act to allow that claim to go forward by doing so it takes away the purpose of the patent the patent only the patent owner can sue it has a right to enforce that a patent in fact all that is is the ability to sue and say if you're practicing on these four or five elements of the patent i have a right to stop you a licensee with no patent and force that right has no right to do so that alone your honor requires a firm it's of this because that is a fatal mission to the case they seem to think it helps them it's fatal to their case how do we get here let's talk about these patents these patents are there thirty one dollars patterns of those patterns they're all owned by a company called j b s not point conversions there's a common ownership but they claim that the clays claim here is not a j b s but pi points conversions the patents that it's a licensee of thirty one of them ok they're all have to do with basically converting points over boundaries in other words have a loyalty program you're able to convert them was very interesting here is three of them haven't declared obvious two of them by federal court  the franchisees that you're frenching the coverage point version says your customers can be infringing so what they've basically done it has switched their theory at one point it was a franchisees and friends of patent but then they're saying the customers infringe a pat no rights to enforce that only the patent owner could do that that's the whole point of a patent and what's really disturbing about that letter it actually says you need to pay me as a license fee for these fees and addition you need to pay me you might have to pay for the they don't say in a letter that it's actually the same person behind it but it gets even worse your honor all you need to do honors all you need to do is look at their own amended complaint during the pendency of this litigation before they amended the st thing they did they sent a and trying to stop this and say this patents and ballots are all the reasons i just said they get an affidavit from mr booth height who's a behind both j b s and p c and he says i'm not going to sue you for pattern frenchmen and so the you see what happened the trial court says well they're as i said earlier this party has no ability to enforce the patent and that the stain wishes all their cases they'll have a single case on a prevention where a licensee has been able claiming he was a co inventor and he said that the other inventors who were listed on the patent had improperly licensed to a rd party and he wanted his share of the fees or the other license fees and the and the federal circuit says look under the patent all they're allowed to do that and you can't sue on that case was unjust enrichment you can't use a state law remedy to do something the patent allows and we talk about how this does damage the patent law it does it many ways judge jordan one of the things that point conversion says in its brief is that there's general language in a supreme court case called but need a vote which indicates that the law is unfair competition in state and state trade secrets law have co existed harmoniously with federal patent law for a lot of time and they infer from that statement that there is nothing inherently conflicted about pursuing and have dumped the claim in these circumstances could you tell me your response sure on or multiple responses of the st been able course found that the statute was preempted and that case it was preempted as a field preemption too by the patent act we're saying this case is preempted and so you can have a situation where some money lies and for example if i falsely advertise all my my stuff  patented or my or some kind or i'm claiming you know some false statements but there are no false statements alleged here what they're alleging is as you argue as you point out in your questioning is essentially patent infringement practice on the patent exercise absolutely no rights against rd parties stranger so that contract and the point is that what they've done is that this licensee by the way is all the same person anyway but just in their own they want to force and their complaint is against j b s if they want to say you know what you're not enforcing your patents you're not policing that's a potentially a breach of their license agreement and they can go their own but they have no rights there's absolutely no cane claim   rangers to that relationship and therefore it's an valid and then of course the other reason is other reasons you look at what they're claiming damages that they're asking for is if you look at the letter they were asking for it doesn't change the misrepresentations that the police are making to their customers because if the if some of those patents have no longer have any force either because of expiration or invalidity how can the customers have any litigation liability as you put it if all the patents were invalid and if they were all expired  about as to whether or not there's liability at all as a reduce the value that is that they might be libel and therefore at the point of sale it was and is worth as much as they said in order to determine that issue as to the value at the time of sale and the potential bill if you would have to know whether or not the patents were valid or not also monthly in this case to prevail that would have to be entered isn't that water in rec i believe the answer is is somewhat yes but i to make sure that let's go back we just agreed that if some of the patented expire and they were invalid we already know that then these customers that is you light you roadway and correct if all of the patents were now not all of them i'm talking about to those that had expired and we know not all of them have expired and we know not all of them have been validated but a sizable preempted or that the court doesn't have jurisdiction to hear our state law claims in fact done state us supreme court gun in two thousand and thirteen is clear that the resolution of the patent issue while it may be vitally important you've got have you got any case that is anywhere near like this i know you cite general principles from cases what is the case that you say has a fat patent anywhere near like this i don't know d if you have a brief before you but there are two things out of louisiana that are actually on point that actually have a similar statute to florida's unfair deceptive trade practices act it's the louisiana unfair snow i'm talking about where the underlying trends actions and everything are similar to this where the patent holder says i don't want to do it and you're bringing us to use a license from ham i'm at those factual pounds not that they have a fair tr are concerned in respect to this case in particular you know there's no allegations as to what the patent holder doing the only thing the point conversions has a to claim in this case in response to your accountant claim that the patents invalid and so therefore there's never diminishing them value at the point of sale no your honor they can absolutely do that with an affirmative de