that's right the first one to change he presumably based on something minute he changed his view of that that's correct your honor the the first the first decision was that there is a lack of general jurisdiction and that it met the first clause specific jurisdiction claim the possession of nine transmitted that second promise met the notice he that is correct on the on the order of going to a she said the first and second problems are connected but now the third prong is not met however in doing so he didn't go through the analysis court ruled in them what's the difference between this case and rattling with everything this case in red wing is that unlike in red wing where the patent owner had never set foot in minnesota and didn't in fact you even have exclusive licensee in minnesota a fairly well subset of activities there are if you're personally present that is the other activities knowing your situation there combining the latter with the personal presence in the state in a personal presence would be a direct nexus i believe that is a different case and i would submit that bet under some of the decisions it would look like that would that would result in jurisdiction what decisions are great for example your honor and a raise this one in the in these silent drive case in your honor that is a very unusual case in which the only issue was letters to a former state and in that when the court said ok well the writers are not sufficient under the unique qualities of the our de if you had the letter delivered in person without any thing you're pointing accusations or any of the window dressing that you have alleged it's present in this case you say well that would be a case which suit if it all is the threat right and that was delivered in person but beyond that what is it that gives specific jurisdiction in this case to the but first i would argue  and they read the letter in the state in this case for getting the letter at the trade show there were metal contacts over the three different cases multiple letters and then there was they they were even more direct than the letter the letter of course was couched in the in the legal the legal change quite a bit but what are we talking about here in terms of the facts that support your argument i mean there was one incident right rob leaders there was at least three incidents over three days in addition to the contact gaming the condition of contacting the convention ben punching my employee is there a good question they would have been jurisdiction in the state of washington over that of action whether criminal or civil that would have offended any traditional notions of justice and fair play now that's the difference i mean that's why and i think judge wright in touch  too i mean when we doesn't say because it's in writing and you didn't actually go into the state and say anything directly in the state you're ok i will read we're going to stab machine is simply tell in forming an infringer or whatever giving them notice of your pattern and the exercise of your right thank you that conduct what the you say or do it where it said or whatever is not sufficient i believe judge prose that under as you just stated and clarified your hypothetical that that really would be more a question of the directory judgment subject matter jurisdiction and personal jurisdiction because i believe among other things because of this supreme court's case in in burner that once you're physically when you choose to go to the states physically in that state you take the action which is offensive i believe that is that is b thought your answer would be that's an absolutely clearly if ended up lee different case in which they'd be absolutely no doubt jurisdiction well but which is what i understand you to be saying now well frankly perhaps if i was an older attorney had more experience in this court i might have presence in the jurisdiction with respect to the conduct as opposed to sending a letter in which the only presence in the the in within the district  support given the court's questions i think i should start talking about the threats of infringement i believe that red wing has been extended to apply to threats given and persons in some of the infringement matter settled and presumably would plan to bring suit somewhere i don't think i can comment on whether or not she plans to bring suit she has not brought suit is not yet not brought suit and the letter that i wrote and s t to the plaintiff campbell actually asked for us to discuss a business relationship i said again so going back to the threats if you look at some of the cases that came after a red wing suit you had killed  grant which involved letters and phone calls and you had electronics for imaging which involved both phone calls and meetings in the form you had dana pon i hope i'm pronouncing that right which also had phone calls  meetings in the form and in all of those cases this court looked at the threats whether they were in writing or verbal over the phone or in person and lump them together in treated them as one unit and said that the threats alone were not sufficient to establish personal jurisdiction get phone calls but that they were actually the presence in the state for media yes there was a meeting to discuss the issues and so there were threats made at the meetings or negotiations over possible licenses or so and which which of those in electronics or imaging in dana paan there were other activities that were found to confer special a special specific jurisdiction but when the court discuss the threats it discussed both the written and the verbal in person threats to get infringement why should it make a difference how that threat is delivered but i think there is some force whether it's right or wrong in the end that there's some force to mr onder support that there has been this long tradition that if if i go into your state and punch you in the nose your state has a very strong interest in having me personally answerable for the conduct of the i initiated in your state whereas if i simply mail a letter then i have not inserted myself into the state in the same way since then the only reason that miss me ali was in the state of washington was to attend this conference and it was a national conference that moves around every year it just so happened to be in washington that like here in two thousand and seven so she was there at a conference the conference is totally unrelated to the plaintiff's d j claims of not infringement and invalidity she saw the infringing device for the first time and she made a threat oh yes but that so if she had she may not have left from her home in california to go to washington and make the threat that when she was washington make that threat just as if you i mean you don't have to i don't have to leave my home to go somewhere to that with the intent of punching somebody in the nose but if i end up there for a different reason a punch in the nose i'm still equally subject to their the jurors expect that that is a criminal act on there which is that someone just suppose it's just civil battery some significant contact with the state even for specific jurisdiction while it's true that sometimes a single act can establish specific jurisdiction the supreme court in burger king made it clear that it has to be a substantial connection to the form and i don't think going to one trade show and making threats is a substantial connection to washington if the form had been him in let's say las vegas it would be no issue just because it happened to be in washington and the defense in the plaintiff the issues infringe and happen to be in washington i don't think that's enough of a substantial connection to brag if patente into the state and it seems like if you adopt this rule that you can send a threat by letter but not in person you don't discourage people from discussing issues you don't discourage settlement talks and we all know that settlement talks we are much more successful were something like that isn't there a difference here because you have the conduct of going to the building manager isn't that above and beyond anything dealing with the notion of a thief and the latter and that's trying to of that the other side's progeny after redwing the cases have involved letters to retailers customers the industry and that has never made a difference for a patent claim in silent drive the letters to the customers involved letters to customers this court found specific jurisdiction because of the letters for a claim of intentional tort intentional interference but not for the d j claims a patent not infringement and invalidity and i think that's assuming and i guess after these decisions it's probably be a fairly safe assumption that there is subject matter jurisdiction that we would also argue that if that if the plaintiff the appellant if you find that they have shown a prime if they should case of specific jurisdiction that the it would not be reasonable to assert personal jurisdiction in this case and it is under the third factor of the specific jurisdiction which i understand is our burden to show but in this case we're dealing with an individual patent owner and the company two employees mom and daughter they work out of their so your view was that that's ok because if you find that they don't meet the third prong that that question than you don't have to go on and address the additional factors correct that that's my view my view is is that under under red appellant has to show other activities other than the threats purposely directed and are related to the claim in the first opinion the district court found that that had not been done in the second opinion he firstly but under redwing i believe under redwing at this court found that threats of infringement are directed that the form and are related to the cause of action and that the reason that they don't count for a specific jurisdiction is under the third ok but i we don't come you know have to reach the other factors but you're arguing the alternative that even if they did you have satisfied your burden on those other factors correct but the judge made no analysis with regard to those other factors no he didn't i don't think he had to because at he said unfortunately sort of did the analysis backwards the district court the motion for in a motion for reconsideration he looked at the threats and he said those can't count under the third prong because of reading in the first order you looked at all the other activities activities other then and other than the threats and you found that those were not related to the claim and therefore there could be no specific jurisdiction separately and if you look at the other activities of each of them they are not sufficient for specific jurisdiction because they are not related to thai lift you had some very minimal sales of its own product into washington  s obviously not related to a claim as to whether campbell infringes a patent or the pattern is invalid and you had the attendance at the trade show again that in of itself without counting the threads is not she made we maintain that she made him as an officer kai lived but even if you were to say she made him in own capacity she has no other contacts with washington so the other activities part of the red wing have the questions and well not so much a question as a comment this just as is often the case with issues of jurisdiction it's frustrating for us say because what one really feels one is doing is not resolving the merits of a of a dispute but rather juda caving questions of leverage i mean obviously it's not doesn't take a genius to figure out that this case stays in washington then campbell has leverage for purposes of any resolution of this dispute and if it ends up either in california or being the only place that they can pretty proceed is california then time your clients money their time their clients money and going through the federal system in order to resolve an issue leverage for purposes of ultimate resolution so i can understand where that settlement i don't know of a settlement is something that could to sign the patterns to to its subsidiary and then took a non exclusive license back and then proceeded to make our lunch of threads in california negotiations and then say well it seems the subsidiary has never been california you cannot sue the subsidiary in california for dr tory judgment of not infringement and the court accurately characterize that as a church problem that's just that's just ridiculous they can't get out of free they can't get a free ride on their actions by trying to situation that may even be controlled by the rules of evidence or whether that stuff can be considered for purposes of anything off of commerce this that is not what happened in in the convention in the convention they were selling they did not seek out the defendants they were selling their product at their group and event it stopped them out and made the accusation tried to get them thread that would show jack to say well there's a lot of bad activities but we're going to categorize them as just one activity the informing of rights and therefore it doesn't count as other activities it is disingenuous that there's a no to the form cannot be a basis for judgment partial jurisdiction but if you go beyond that and do more specifically in the form then there's no case in this in this in this court the says when you go to that state and you have more than a cease and desist letter and your contact in that state is directly related to the cause of action there's never been a case in this court the says that doesn't satisfy personal jurisdiction and i believe in the cases that that  get someone thrown out of a trade show and don't make accusations that they're copying your patent and that they are these are really expensive if you do that then it's only fair play that you have to be held accountable for your acts in the state of washington do you to the state to a state court and to the customers that by itself is not enough for territory judgment of not infringement but for something else that would be enough but so would you just to clarify the point we raised earlier so your position is the floor we had was of traditional notification to a customer and a cease and desist letter if someone actually travels and delivers that information orally and in person as opposed to sending a letter putting a stamp on the then yes i would agree with you when you because letters to customers are are protected communications in a patent law but if you travel to the customer if i was a customer was in washington or montana they travel to the past work and they said geez these these guys are really infringing on  patents you could be liable if you infringe on this patent do you really shouldn't be buying a product that is different and i believe so i thought you were great i said i said i thought maybe i misspoke i thought i was saying do you agree do you think that there's a difference or so you think there's a difference because i do think there is a difference  i believe sending a letter to a customer informing of them of your patent rights and that you've steadfastly into new imports them is different from traveling to the customer so making the inputs and going to that state i think makes all the difference i think the physical travel to the location makes a difference in that case once you've got beyond sending them a matter of cease and desist and you actually go to the state related to that contact whether it's to personally contact the customers or whether it's to personally do something that's related to the accused infringe