the farm by risking behavior that could be deemed to be unlawful or actionable and i can i'd just do a housekeeping question before we get into that and that is what is the current dad i mean there are two other legal north carolina action is kinetic having gone and file to a number how was it maybe you can just in light me i mean i guess i see an incredible irony in this in that you presumably your argument for having rushed in for a d j was that you needed some certainty in your client needed some certainty because they wanted to go on the market with their products and it seems to me that the process here and there are a lot of iron i guess from the law but the process here and the way you've chosen to proceed means that has delayed this process for years and years and i mean now you've got i mean if the if you would drop this the north carolina case would be proceeding presumably your client would have all of the uncertainties risotto and that i mean do you see the irony and i think in how this case is proceed if i do you are my client did want to proceed in a form convenient to it in the delaware outweighed the certainty that the convenience was quite important to my client to exercise their right to bring an action in the form of their choosing or three of the four parties are located also k c i is brought into the north carolina and wake forest university which is the ass in the area for the five patents are at issue in the delaware case presumably to create a nexus to north carolina to wake forest it's been interest k c i that's to subsidiaries who have the exclusive license under these plants and exclusive rights to force them will wake forest and without these extraneous parties but that is an irony i have noted here  the district court's decision to dismiss the action the court did not conclude that there was no actual case or controversy under the all circumstances test rather the court decided in the exercise of its discretion and that's what the trial judge and that whether or not there is or isn't i exercise my discretion because this affection with the way she saw the proceedings having risen and how he would become that discretionary i think it's important know when the facts and under the bed and test of course it's all circumstances where all the circumstances do establish a substantial her exercise of discretion she makes passing reference to the priests who phone calls between mystery to me about to executive case yelling and specifically she says that i t out is not willing to make its concerns a matter of public record and she also references the latin phrase sub rosa which i had to look up and that means secret or confidential and that's really a puzzling conclusion on the district court's part because there is nothing secret or confidential whatsoever about the priest suit communications between mr to me and his former colleagues in k c i rather mr toomey call he said he was he identified to these recipients of the calls that his new company was about to launch a negative pressure therapy device that would have a phone dress and he stated the purpose for his c was to determine whether there could be any business resolution between the company's way they can peacefully co exist and to assess the risk of litigation to the space and entry into a market dominated by  department these were personal contacts and these folks had no authority to speak or to act on behalf of kinetic given their their positions in the company and that was really at least one of the b the declaratory judgment plaintiff during licensing negotiations filed suit in a form of its choosing contacted the panty the next day and said don't worry this is just to preserve our rights we want to keep in federal court here there's no such evidence that the filing of the action itself was tactical and your honor's question regarding judge robinson's concert whether these gentlemen receive the calls her death already to speak on behalf of to me he might have been quite offended by the artifice you know any of that and if you were a kenyan we should be entirely entitled to take that into account in weighing the discretionary factors but you say oh no it's only going to do or think it cannot be considered accused of patent friendship by this very patent t he didn't engage in any sort of deception didn't misrepresent himself and he told these gentlemen i'm calling to see if if we can peacefully codes este or you know in other words  co on the discretionary issue then what is reversible in her discretionary call or her opinion does not say that there was artificer deception or subterfuge but if that's what she meant that's no burke was on the executive committee he was very well aware of the way this company forces patents and was nothing equivocal about his state he said if you launch negative pressure with therapy plus phone the odds are one hundred percent the k c i will see thing that the judge robinson had you were all back to go against human is only allowed to rely on the fact in your play right that's ridiculous of course you have to look at all facts that point in both directions i absolutely agree that mr burke did not add if it what she did where she adopted the report and recommendation of magistrate judge starr which goes which is almost entirely devoted to the constitutional issue why did he didn't real i mean i  to acknowledge on page four that the standard applied by the magistrate judge was arguably at least inconsistent with met him and she even kind of references that she thought and what now  for in my view the broad standard established by the supreme court should not be anchored in that generic nero parent i do stand but i think she was doing there when when when you look at judge stark's report he recognizes that the sand this court said generally jurisdiction will not arise without an affirmative act and then he goes on and says this is not the case that provides the exception to the general rule and then he spends a lot of time on the affirmative act requirement and i think what she's doing there because their objection to the report recommendation made it seem like judge starr was saying it's an absolute rule it's a concrete u all rule and what she's doing there is making it clear that that is not she it that both she and judge stark recognize that it's a general rule but that the exception is not this case going back to your neutral point i get my  precise question would you read her opinion if having to thought i did no case in controversy in the alternative even if they were i'm exercising my discretion or not it that's exactly how how we review it and it makes sense if you consider judge star position is a magistrate judge where he ends his this report with a policy issue but perhaps doesn't feel comfortable going into the realm of the district court judge on the discretionary aspect so he lays out the law he lays out the legal foundations for why it should be dismissed provides a policy reason for why that's the right decision anyway and then she takes it from there and says ok i agree with the magistrate judge on the wall now needs the district court judge because this is my province i'm going to know consider the discretionary aspect and so that's why her opinion focuses more on discretionary aspect because that's her part of the of the equation  exercise my discretion and miss the case that way and i'd like to talk a little bit about the discretionary aspect of her decision and starting with the supreme court statement and will which is when we're looking at the district court's decision to dismiss in its discretion that the district quirk should get and the language here is unique and substantial discretion in a declaratory judgment context especially for decisions  considerations of wise judicial administration now judge robinson is the former chief judge of perhaps the most active patent court in the nation there is no judge that understand you have or you know we don't break in this case and that is if there is no consequence to fight a premature to a premature declaratory judgment action that you've taken away any incentive for potential declaratory judgment  trying to direct your attention to the lack of reasoning in her opinion regarding the exercise of discretion well sheep sheep what is right in this reversible or a lack of any think it comes down to her exercise of discretion comes down to one part of one thousand where she says never last where as here and d j plaintiffs are not willing to make it concerned a matter of record pr concerns a matter of record with people who count with people at the patentee who can actually make these decisions and there is and she makes a factual finding here  deficient people do that and also that to me was not direct in the purpose of these phone calls and if you look at the context of the phone calls she's absolutely right there's no other way to use facts to the eve of his retirement in burke's car on a cell phone while burke's on his way to mexico he calls in the stated purpose of the phone call is to congratulate him on his retirement and then he turns and asks for perks fatherly advice he asked for his personal opinion he's not asking for his as an officer of k c i want to know what k c s position is he's asking for fatherly a long it provides a detailed factual description of everything that went on and concludes with a policy reason for why i t i should not be allowed to benefit from its premature filed this complaint in this case and so you have to read the two together if if if judge robinson's four page opinion stood on its own on its own it would be a tougher opinion to defend but she adopts that twenty page report and that twenty page report is extraordinarily detailed and provides that comes up it is you can get jurisdictional you can meet the jurisdictional requirements here but in this case if they're going to contact casey i remember k c i was generally aware  couldn't really find out any information about it and when they did have them they had some information they have yes yes yes they had five thousand cases they're marketing people we're looking at their legal people we're not looking at it o that i mean i mean you know that because that happened to be the case here i mean here you know general rule that it's only marketing and not legal or less i'd agree but but the significance of it here is that you know well it was going on internally at k c i it is really irrelevant what hat what what is relevant is whether there is a dispute between k c i and i t i in september two thousand and seven when they filed the declaratory judgment and there wasn't there was no communication between the parties there were no threatening acts from k c i towards i t i there you know we're not asking for a blanket rule out of this case that covers all of them what we're looking at is this court's jurisprudence and saying when you look at what this court requires for a case or controversy it's just not there september two thousand and seven what's missing specifically your friend and former colleague and i don't quite understand how you can suggest that everything they said in the new phone conversation was purely on the personal thought i'd not on the corporate side well when when conversation to be a corporate discussion that are there's nothing in the record that suggests that either work or gerard went to anyone else at k c i and said oh my gosh i just got this phone call from potential competitor and when you think of the way to need describe the product as essentially a knock off of casey eyes back he doesn't go to anybody gerard isn't good anybody they obviously felt in the district court found that they thought they were having personal conversations they thought that what was going on between then and to me was a confidential we're trying to it's there's no there's the finding that it's a personal conversation where it's  well judge robinson refers to it as a they were not informed of the real purpose behind the conversations and from at her people that she's talking about w facts in front she has which is these were confessional phone calls between business people and she has casey i's interpretation which is burton girard quote these were personal telephone calls  talk about the circumstances surrounding the phone calls and so she resolves it obviously i think in casey eyes favor here and so that that's why i infer and i apologize for stating her suggesting it was explicit but looking at the record irrelevant we had made a point that casey i hadn't even done an internal infringement analysis but that was more for you know flavor you know not only had we not contacted i t i infringement we hadn't even done an infringement notices internally either and so whether or not the five ten ks were sufficient or whether or not there was an infringement analysis does not say anything about whether judge robinson's opinion to understand the basis for judge robinson's discretionary dismissals i think quite telling here because the fact of the matter is magistrate judge starr never addressed the issue of discretionary dismissal in his report so that report cannot be used to fill the large gaps in the district court's opinion regarding the basis for discretionary dismissal which is this all again that goes back to your argument the third fact can only be finds that there is something improper or guardian the priest who phone calls never addresses despite discretionary dismissal and factories says he's assuming all the facts is alleged to be true so his report cannot be used to fill the purely me because these people didn't have the authority and that's what your life is reliant on many but we had reliance and many other facts objective lee proven facts are not disputed here namely our fights in case a recent case recalling correctly a panel with an opinion by judge reader suggested that in circumstances such as this the discretionary announces may look almost exactly like the fourteen zero four transfer and you think that that case required robinson to make a transfer type analysis as opposed to the analysis represented by her actual opinions absolutely in fact casey i took that very position we agreed that since what we're dealing here with was competing her say for her to not have explicitly written up fourteen zero for analysis i believe so the micron decision whereas here you have competing foreign interests the district court must analyze the convenience factors fourteen zero four and that's particularly important generators give me the exact language from my current circumstances in there if it's considering the issue of discretionary dismissal and there is a subsequent filing action for patent friends from another venue then under the start of page thirty seven of our opening brief we know in the first paragraph that this court's precedent requires the district court to apply the convenience factor