when you're ready mr phillips thank you may please the court it's always an joy of all taking a stroll down memory lane and going back pursed your law school and thinking about world wide volkswagen  personal jurisdiction let me just give you a little bit of background that i in context that i think will make the personal jurisdiction issue a little more understandable in the late ninety's dr adams the inventor here discovered that there w data corruption in computers and as a result of his work there was a two point one billion dollar settlement in one nine hundred ninety nine that she but paid for its defective computers he was the only person who had this technology after that settlement honorable companies like hewlett packard came and licensed its technology for nearly thirty million dollars compaq agreed to pay thirty million dollars there were other computer companies that simply took his technology and used to technology test their computers whether there was data corruption in them and whether they used a technology to fix the data corruption in in their computers one of these companies is a seuss technology and a truth is probably not a well known brand but it's becoming more and more a well known brand they sell laptop computers desktop computers they make all kinds of other products and the allegation in the last two of you is that a soused tested all of its computer products and using dr adams technology and used his technology to fix their computers and dr adams he resided in las vegas nevada he moved to afton wyoming to start valley and they make a big deal about there something the various about wanting to move vegas to star valley wyoming and i would submit that there was nothing nefarious about doubt but the lawsuit was filed in in wyoming where dr adams lived and the undisputed evidence admittedly is a targeting test it is did they target wyoming and is sold can you give us any indication any facts in the record that says they were shooting from across the pacific ocean the naming of wyoming or that to two things first of all we weren't allowed to conduct any jurisdictional discovery even though the magistrate judge gave us sixty days to do that fine but  second and you're going to get the full benefit of all all of those allegations but you still have to a lead that you were shooting at wyoming up to shooting generally r at the united states shooting at wyoming were you in that the evidence is yes because where there distributor admittedly in the record shipped at least twenty times products to to any allegations of any ranging item we are allegation in the complaint is all of those products infringe the inventor's patents because they needed to test all of those products to see whether they had data corruption on them we weren't allowed to do any discovery is to find out exactly which model of the laptop was sent to a resident of wyoming which chip was in it and in things like that but the allegation in the complaint was that all of those computers and products in general and and and just you know we we named  paragraph sixteen the tentative infringed various frames of each of the patents institute in violation of thirty five u s c section two seventy one through money among other activities the manufacture use importation sale and or offer for sale of computer chips motherboards computers and other products as well as using infringing methods including but not limited testing of defend its products as a part of the manufacturing process and that then we allege that they intentionally induced others such as customers and end users to infringe the patents and there isn't i will concede there is no specific allegation that in the complaint that they targeted wyoming don't you have to have that i mean there's no invoice there's no employees there's no offices there's no presence there's no cartons of dress to wyoming there you don't you have to have tron made shipment there one of the things the first things we were going to do is do jurisdictional discovery and find out exactly what those products were you keep mentioning that is every issue but but the reality is that your meeting with  was the district court schedule no hearing set no you know no schedule like that we didn't know that the district court was going to rule when we went to the scheduling conference we said one of the first things we need to do is do some jurisdictional discovery but in response to the motion to dismiss in our reply brief we did rely on the fact that they admitted in their papers were repairs and accessories those don't even seem to fit weren't repairs or excess trees and were entitled to have all of those inference was drawn in our favor because we couldn't do any discovery on that but it was a district court dismissed without prejudice why didn't you refile with appropriate we filed the the appeal here rather than going back to the defense or thinking of first year law school what are we supposed to do without a rule fifty eight order judgment there still though if i don't judgment in this case is there i don't believe there is where or if you're late the jurisdiction of the fourth we will stipulate to jurisdictions we can you i believe we can i mean there's there's no there's nothing else going on down in the district court it's been told the answer is no you can't we still have to independently find a basis for you for jurisdiction you do but we can we will stipulate that ok why what why can't we discuss why can't this just go to california where it belongs because the inventor's a resident of wyoming that's where he lives that's where he resides there infringing products being sold in wyoming wyoming they buy all ming is lovely i have spent a good deal of time in star valley caught many fish there but that doesn't give you a justification for jurisdiction in life if you are targeted wyoming and and where's the targeting will  stream of commerce notion which is discredited by mack and tell me all the i would disagree with you beverly hill said that when you have an independent distributor you know that when you have a a distributor that's working for the manufacturer and they target virginia as was the case in beverly hills the question is whether they targeted virginia and the only remember there were a couple fans that showed up there but all the offices all the imports had been into new jersey they couldn't really tell how they got to virginia and then but the court said nonetheless because there's a stream of commerce we'll let it happen right in because the back and tired discredits that reasoning a hills fan how'd do we justify making this federal circuit law when it will proceed to a why shouldn't it be why shouldn't this be a law governed by the regional circuit  in beverly hills the court addressed that instead we're we want to make the uniform law for patent infringement because we think it's important for the pap infringement statute to have a uniform logged personal jurisdiction and the federal  distribution chain that there were distributors that were directly related as i recall beverly hills you know if this is a matter of degree  suppose when you talk about targeting it is a matter of degree it does he says the connection here is more remote than on its facts that existed in beverly hills they admit made shipments to wyoming as well at least twelve so it's not just the distributor it's the same thing as in beverly hills fan where you have the manufacturer and the others being the everly hills are mean supreme court said endeavor in mcintyre was sometimes a defend the target to market by sending its goods rather than its agents and jurisdiction is proper the defendant has targeted the form in the court relying on worldwide votes but again said that you can use the stream of commerce when consumers with the within the form state when to purchase products that indicate that the the manufacturer made a purposeful of ailment when a manufacturer distribute their seeks to service a given state's market and there's no question that a seuss seeks to serve the wyoming market it seeks to serve in every market in the united states doesn't card wyoming now you want to save your rebuttal time in the morning no college in the front for my cold go through this i think the court has very clearly and cleanly identify the problems here on this particular field there is simply no evidence in the record of a pri case of personal jurisdiction that was made out in the district court they've made a lot to do here by waiting a chance to do discovery they filed motions on his and at the court actually looks of the docket sheet will see that the briefing on this motion to dismiss for lack of personal jurisdiction was closed two weeks before the initial status conference held by magistrate judge cabell they had an opportunity at that time in opposing the motion to ask for jurisdictional discovery if they wanted they didn't make such a request they said they provided absolutely no evidence whatsoever to contrary to contradict the motion papers that were submitted on behalf of the moving defense so this idea that they were somehow jumped out of their opportunity to do jurisdictional discovery simply isn't supported by the record all held his initials guzzling comp it's kind of a cattle call for all four of the cases that we had been filed there in that district that afternoon the district court judge that freed volley shooter order dismissing granting our motion to dismiss for lack of personal jurisdiction so that's why in the in the docket it will appear that the actual order that issue dramatic stricter scotto doesn't come till march first which at that time was only covering other defendants that were still in the case at that time but not my client denied by the district court in california so there is an action still pending in california they're free to bring their infringement actions there that's where all these defendants are actually located where the majority excuse me of them are located that's clearly where they focus their entry into united states us to do that but but it was direct shipments drop shipments from here at least one of your playing well for from from from a c r and what you have over a period of six years you have less than twenty years with the record actually show drop shipments made at the request of the distributors who normally distribute their products the difficulty here is that as one might guess well meanwhile great for fishing isn't necessarily want to largest consumer markets for electronics that united states so even assist text distributors who may have several of them are on their website we can buy products from don't have a great distribution network in wyoming so as requests came in for small de minimus things like chargers and other accessories those distributors asked instead of sending them to their central distribution point which is what as as as the law is very clear here in order to establish your stiction and to meet the prime official case for self and personal jurisdiction they have to make some connection between the alleged infringement the takes place and of the targeted forum that they're trying to bring jurisdiction and there was none of that in this case and that was part of the problem that the district court said is that there was no allegation saying that there's even infringement going on here in wyoming and that's part of the problem that's their birth to it made that initial proficien the tests when they allege are within the scope of the patent your answer they would be different i suppose i guess if there was any evidence in the record that actually took place your honor but the sooner we get to the question of whether or not discovery we can't simply allow them to give them forever and say oh by the way maybe now we should raise this issue of discovery for the first time with their counter claim filed it take california decoction they have the opportunity to the judges ordered in granting denying their motion to dismiss we filed the clerk to relief actions for invalidity and also not infringement the court granted the motion to dismiss are not infrequent claims because we identified the accused products in the same way they did in the wyoming action which the court in the california case is west not really good enough for not really identifying products but what it allowed to stand was are declared for relief action for purposes of invalidity so they will have the opportunity should they choose to do so to add claims for n inference for infringement if they want to go ahead and identify which specific products are actually accusing the french with their action or the whaling action that was said to get the values at no there was part of the history i mean litigation that's unrelated it's related and since it involves some of the same patterns that it separate and apart from the section once you lost in utah he went to wyoming with ok i'll try there maybe i can get a better better jury or a better reward there on it what do you make of the fact that there's no i think you're out because there is a it's an appealable order i believe that once we were dismissed even though it was without prejudice once we were dismissing there's no other parties in this case the only other parties are settled out that that is an appealable order at that point but they hadn't settled out at the time the appeal were filed at scripture does that matter it normally would mean this court didn't have jurisdiction to hold their appeal this time we're willing to waive that effect just because we want to go ahead and get this issue decided rather than waiting but technically should have waited until it's over the other parties and that order then what that would become a final appeal just couple of other items they pretty heavily criticized the stream of commerce theory and i think actually that is the correct way to go that we should be looking at the context contacts of each individual defended rather than this general stream of commerce that that's an useful metaphor in some respects but it's not very useful for actually analyzing the jurisdictional context because in today's modern economy companies are so specialized in what they do companies are set up specifically just for the distribution of goods they make a conscious decision that we're going to distribute goods either on a regional or national basis and they should have to live with that consequence but doing business from the manufacturer standpoint they're choosing to do business with that distributor that's the context that should be looked at and i think that's the contacts at the mcintyre or what have you look at so that for example in a suit if they do business with a national distributor and they're just riveters located in st louis they're making themselves amenable then to jurisdiction of st louis because they're doing business with that company and saying but with they're not doing necessarily saying we're making ourselves amenable to jurisdiction personal jurisdiction everywhere that that company does business that company's business has to be looked at separately and i think that's what the mcintyre court is looking  here is stream of commerce still potentially useful maybe in some circumstances because it is a plurality decision it's not clear where the other members of the majority of that system would go depending upon the fact pattern and i think the the there is too many open facts for them that make a wholesale change in the law but i think that the for the for person opinion there is clearly criticizing this idea that you can simply throw out the stream of commerce of some sort of alice men and that opinion there was still that in a circumstance like this you cannot find personal jurisdiction if they did not find personal decision in that case a product liability case were so news actually injured by the device in the state where he wanted to bring suit and the majority said that wasn't enough in that case because there was still no purposeful targeting of new jersey in that case in that sense if that wasn't good enough there then clearly a situation like this recently have nationwide sale of products again there is no specific targeting that's going on here so i think the six person the six justice majority in that case would not find your six in here the other because there is no specific targeting going on of oil was now a prejudgment interest one point three million dollars and it's going to be coming up in front of the federal circuit my soon there in appeal it rather than pay it with respect to the allegations of  e you need to make an apparent infringement case if you look at form seventeen in the federal rules are complaint more than complied with with form seventeen and i know there's this whole twamley  moving out there were people think you have to start feeding evidence and everything but i i would submit that our complaint more they complied with form seventeen with respect to discovery on the jurisdictional issues we did raise that issue with the district court at the pretrial conference the magistrate judge knew that personal jurisdiction was an issue we asked for that discovery we assume there would be some communication between the magi and the district court judge apparently there was not but i think the record is clear that we did ask for the jurisdiction of this government and then with respect to the question on whether beverly hills survives macintyre i would submit that if you look at macintyre carefully macintyre heavily cites to an relies on world white volkswagen and remember the facts of world wide volkswagen there was no question that audi the manufacture and volkswagen of america the importer were subject to jurisdiction in oklahoma the only issue in volkswagen was whether the car dealer and the regional distributor that sold to the car dealer in new york in the tri state area was subject to jurisdiction in in oklahoma and in that in that case the court basically said you can appoint your shadow as the agent for service of process but with respect to the manufacture our being which targeted the entire united states and which sold vehicles in oklahoma and with respect to volkswagen of america which was the explosive distributor for audi there was no question that they were subject to jurisdiction and oklahoma and that's the same thing we have here a foose targets the entire united states including wyoming even though there may only be five hundred thousand people who live there they still send their products to wyoming they have an exclusive distributor a c i that the record shows sent twenty at least twenty products to wyoming the same thing is on the peg a troll inside what  in two thousand and seven or two thousand and eight a seuss decided to take its research and development arm out of a suit and make it into a separate company called peg or tron for whatever reason our contention is they knew dr adams was coming after them and wanted to that's where a lot of the infringement took place with with was was with the development but the same the same thing happened with pe khatron they sold at least twelve different shipments into wyoming so under the worldwide boats wagon and beverly hills fan and mcintyre were mcintyre still relies on worldwide volkswagen there is personal jurisdiction in wyoming and we would request that the court remand at a minimum the case back to wyoming for jurisdictional discovery with respect to what's going on in california on december twenty ninth the court found in wh california that there was personal jurisdiction but dismissed the complaint with they have thirty days to amend their complaint we see we are considering appealing the jurisdictional decision in right now where he wanted to be you know it's going to have to either be a motion for reconsider maybe an interlocutory deal i don't know where we're exploring our options right now but you're right so unless the court has any for the question thank you very much for your consideration phillips that concludes the morning