probably useful to put this case in context and to compare it to the facts that gave rise to the passage of section two seventy one elf that's at issue in this case you'll recall that in the deep south case it was a case involving a shrimp in which all of the activities took place within the united states except for the final act the took less than an hour to assemble in a foreign country in that case this court held even that was not within the meaning of the  patent statute as it existed then and congress then acted to fill that particular loophole the facts of this case seem to me to be the polar opposite with life tech has a lot of technologies operates an enormous plant in england in the united kingdom spends tens of million dollars on that plant four out of the five components that go into the creation of the kids that are at issue in this case or sourced outside of the united states one inside a come back to that in a minute and as relevant to this litigation all of the kits are sold outside of the united states so that the only contact that any of this has with the united states is the fact that a single commodity product is shipped t england as part of the process for the fabrication of these particular kits now that commodity product is called attack polymer arrays which i will readily concede that when i think about what you buy off the shelf i don't go to costco to buy t polymerase but i am told and i think it's absolutely on disputed in the record that this is a commodity this is at the essence of what the congress and acted in f two which is a staple article or commodity of commerce suitable for  many non infringing uses and indeed if you get online and put intact polymerase you can find literally dozens and dozens of ways to purchase it online at this time and that was true as much in two thousand and six may have been a significant hundred nine but clearly by two thousand and six it was a commodity and so the question is whether or not simply by using a single staple article congress intended through seventy one to declare in the key to this is you want to you want to get the best quality product it presumably at the lowest possible price and most of these were purchased most of the tech was purchased from the roche company and i suspect they just had a better supply arrangement i mean that's that's the key to this case in a lot of ways is what you're looking for is one of the best supply arrangements that you can make on a global basis can you going to in the united states can you can i'm outside the united states and what it seems to me clear that congress could never have intended was to in some way disadvantage u s manufacturers who are providing a particular staple indeed i would read to seventy one have to i saying categorically that the one thing congress did not want to do is to interfere with the ability to of a manufacturer to provide a stable article as part of the as part of an activity outside of the united states if all of this had happened in the united states would there been a patent infringement suit that would be yes everything and take taken place inside the united states there would have been under the u k laws where patents generally enforced for items that are patentable in the u k yes yes absolutely and indeed in this case  moat at least somebody had a patent in the u k but that patent had expired which is candidly not surprisingly why the activity was taken and that is ultimately justice kennedy the answer to these issues if  patent holder in the united states is upset by the use of a particular invention outside the united states the solution is to go outside the united states and see packet pack patent protection in that particular time limit though there might be other countries that are not that each country should regulate its own patent rights and we bought into that deal and the paris convention in the one nine hundred century and consistently have accepted that and that's and the whole theory of this is to ensure the free flow of  commerce across borders on a regular basis at least when we're talking about a stable articles of commerce you know if if you know where the federal circuit clearly got this wrong is in saying that you could interpret f one which talks about  has to be is a specially made or a specially adapted for use in that particular invention there's a substantial portion mean a majority i think it means substantially more than a majority i would i would say that it has to be approximating or very close or tantamount to all so here there were five components yes or no and they would have to be off five would have to be made in the united states or well i would have a minimal enough i would have thought at least four would have to be but i you know and in many instances my guess is the right answer may well be five where where do you get that from what's the principle there because all congress wanted to do was to close a loophole where you're essentially doing nothing but violating s patent law and avoiding it by simply offloading it at the last second and a lot of instances i don't think that's true when you're only talking about a majority of the how do we know that that's what congress wanted to do i mean that might have been the  scenario in deep south but congress used language that could refer to much more than that that could refer to a majority that even could refer to a substantial minority i think there is no way improve first of all the rule against texts or the rule of the presumption against expert or authority ality would drive you in the opposite direction even if you could reasonably read the language either way you would he would drive it toward recognizing that the company that  substantial portion keeps is the word all and is talking about components and so those are to my mind very much quantitative and driven in the direction of all  yes justice ginsburg i agree it could be interpreted in either of two ways which is why i think the principle against extraterritoriality drives you in the direction of saying congress meant only to allow us patents to operate outside the united states in very narrow circumstances and if congress chooses to to create the kinds of international problems that will undoubtedly arise by an overbroad interpretation of two seventy one f which is what the federal circuit has adopted leave it to write clearly in that situation there's there's no liability because it's because only one of those components either one of two things i was either both of them are being put together or only one of them is two seventy one in effingham and it seems to me that even if we agree with you quantitative is the proper measure you still have a qualitative coming in too much or judgment as in the case of one out of two well i'm not one out of two one out of two seems to me  is dictated by two seventy one have two that says that if it's only one and then it has to be either especially no after especially well i'm just talk about f one i'm sorry but take your time about one out of two components i apologize now when you get to one you know there's no question that at some point as you're approaching all but not all that you're going to have to make some kinds of judgments but it seems to me it's absolutely critical that the court maintain a very significant numerical component to it otherwise what you do is allow the the extraterritorial principle not to have the full sway that it should be entitled to not sure i agree with your understanding of the extraterritorial principle i don't i mean do you really take that down into the minutia of every little clause it seems to me it's who wants the law applies when you apply normal principles of statutory interpretation i think we have cases about that in other and in other areas which is sort of what is the reach i think maybe the presumption against infringements in sovereign immunity is i can't recall right away that civil once you get over it it's over and then you apply normal principles and i'm not sure at every turn ok that we know that this is a statute that obviously applies overseas mr chief justice that exactly the opposite of what the court said in microsoft and microsoft the court said that the issue is not simply is this extraterritorial because there's no question that two seventy one f operates extraterritorial question is the sweep of two seventy one alf and this court said that it was going to interpret the word component very narrowly in that context candidly in the same way that the that this court also interpreted it in the deep south case don't very narrowly and we're asking you to do the same thing which is to say adopt a narrow action of the substantial component language so that it drives much closer to the word all and recognizes that this is meant as  that is that that you interpret it differently than you do and we cause a lot of problems in other countries i mean they can't tell whether when they get one component their lawyer is going to have to know not only british law it's going have to know american law that exact and that's a very practical argument and it really you don't need your it's up to you if you want to use it i don't think the problem is that if that's the point why do you need this sort of grand thing  about prince presumption against extraterritoriality w what you want to use look i'm perfectly comfortable with any any policy argument you feel comfortable with that one certainly one that we embraced i mean the other the other policy argument this is the me equally strong in this context is the is the mischief that the federal circuit's rule provides for trolls because now not only do you have all the trolls in the world looking for all the products in the world but now they're going to go through the entire that the that the qualitative interpretation has a greater extraterritorial effect than the quantitative interpretation what if you have a situation where let's say there are ten components and nine of them are are are made overseas but those are very routine things those are like that the product that was made in the united states here you can buy them off the shelf but there's one that's very unique now it's not made specifically for this device but it's very it's it's very unique and that's and that's made in the united states yeah well you know from our present it the only device coming from the united states is a single device and it's not and it doesn't satisfy especially major specially adapted sees the me that have to tells you specifically that's not within the meaning of the statute and if you want to fix it it can fix that i'm not sure of that's true mr phillips i mean your reading of two as having the negative implication that this is the only time when one component  can create liability is when it's especially made or especially adapted but these might be just independent clauses in other words if two talks about a component that's especially made whether or not it's a substantial portion of the product and then f one comes in and says independently creates a rule for a component or components that are a substantial portion of the product so i'm not sure why we have to read two is creating this negative implication as to any product any single product as opposed to just saying f two is about specially made stuff and it has nothing to do with f one which is not about specially made stuff and provides a different test about substantial substantiality right first this is i don't i mean i don't think that's the more natural way to read the two together but then i would go back and without trying to offend just as briar go to the principal against extra territoriality and say say to you that if there were two different ways the dirty quilly plausible to interpret this language you should interpret the language to be nor narrowly applicable and therefore less likely to interfere with extr extraterritorial extraterritorial application of patent law and so that's the reason i'm not saying you you would have in the abstract being compelled to a particular conclusion but in a situation where congress has used the language talking about all or a major or a or a substantial portion were all all is is all but you know it's very close to that talks about components of the invention not of the invention itself the federal circuit twice in its opinion just dropped out of the elements in the claim and so you look at the claim and you interpret the claim and you does and you devise from that now that that claim and that's claim construction and that's not always the easiest thing in the world to do and requires a review of the claims review the specification and the and the history but in this particular case it's very easy to claim say very categorically what each of the five components are is and and so that one's easy if the no further questions  i'd like to reserve the balance of my time thank you counsel may please the court we're asking the court to do two things here today first we're asking the court to hold that the supply of a single commodity component is never enough we think that's clearly right when you look at f one n f two together especially in light of extraterritoriality concerns second we're asking the court to hold that f one reaches the supply of all or a large portion of the components of the invention not any important portion of the invention and the way we would put it is that it reaches the supply of all or something tantamount to all of the components and our principal practical concerns here stem from the breath of the federal circuit's ruling and it's broad because they're asking a loaded question that's looking only at a part of the picture if you look only at the supplied portion of the components and you ask whether they are important central to the operation or novelty of the invention the answer is always going to be yes in most inventions if you take away any component it isn't going to work and it's not going to be patentable so we think you just can't come at it that way and then the second piece is that the federal circuit isn't looking at all the components that were not supplied and so they're not asking the comparative question of whether the person has done anything similar to supplying all of the components and we think that's just a critical piece here this is an anti circumvention provision it was enacted to shore up the basic territorial restriction against actually making a patent an invention in the united states and then shipping it a broad and we think it needs to be interpreted with that purpose in mind you sheep substantially mr philips argue that substantially all has to be just that almost or you state in your brief to us to keep that the or that i'm assuming that there's a minimum that wouldn't constitute an infringement well i think neighbors and thirty percent forty you know so i think the the one bright line that we were drawing here is on the face of the statute is that one is never enough we think that's clear when you look at f one f two together the way this court read them in microsoft the first time beyond that the numbers are very important under our test but they're not the whole ball game where we say this on page twenty six of our brief you could also you would look not only at the numbers of the components they were supplied and not supplied but you would also look at the relative time money and effort that you would need to obtain the remaining components so if i could give time money and effort but not significance of the component i think it is to me that the significance of the opponent component would be the most important consideration i think it is so there are it's the if if it's whatever you think is not quite enough seventy percent b seventy percent of the components i mean that's really the core of what makes it work i don't know why you would look at that differently than if it's seventy percent but the seventy percent are you know fairly insignificant well our principal concern is  as i was saying is that if you just ask the question of whether it's significant in the sense of is it essential or important to the novelty of the invention i think that's just a black hole it's not going to get you anywhere and we think our approach works better if i could just give you two examples of how this would work using this particular invention so if somebody if if the record here showed that manufacturing the first component the primer mix was you know an incredibly difficult time consuming hard challenging process the bulk of the work here but that you could get the  reaction buffer very quickly in a heartbeat you know it was like a dime a dozen you drop it into the kits and it works and that circumstance if somebody supplied all the components except the reaction buffer we think they would clearly be liable because they would have done something that is really tantamount to supply and of the components you could get that last one so easily but if supply is somebody supplied all the components to the expert testimony here that of the five three were significant so let's assume they supply the three significant components not to let it is significant we're what would your answer be that i think that would be a much closer case to supply and something that is tantamount to supplying all of them under our test i think the record  here isn't isn't fully set out in terms of what it is that makes them main or major or trying to get at and the key point to us whether exactly how you articulate this test i think doesn't matter all that much to us but what we really do care about is the idea that this needs to be a comparative inquiry looking at how much work there is left to be done to obtain the rest of the component i so that once you once you're in do your fairly complicated task i mean i think it's like you're off to the races and what factors do you look at all of that when it seems to me the the clear argument is whether you want to call it a plain text or not but it's just focusing on a numerical it's a substantial portion of the components and now you're saying well it kind of depends on what components we're talking about you know how much time it takes to make them effort i don't quite understand what effort means in that area and in other words you're compromising the principle in a way that really undermines the force of the principle no i think what we're saying is  that the statute carries the quantitative meaning in the sense that it needs to be a large portion but this isn't any circumvention provision and in trying to figure out what it means for it to be a large portion the numbers are a whole lot of the picture i don't want to don't want to diminish that but as we said on page twenty six we think they're not the entire ballgame and a court look at it could look at some qualitative factors but that it would not look at the question of whether what's left on the table is essential to the novelty because the answer to that is always going to be yes  i don't know enough to have the answer to this when a claim is v what how is that determination made what the elements or do the elements determination the common from the uncommon not as i understand it no just be it would just be sorting out what the elements are and in the way we approach the components of the invention this is on page twenty seven of our brief is we think as in microsoft that they they are they need to be capable of combination and they're derived from the elements of the claim so we think in most cases actually won't be that difficult and also as you know as i was saying i think under our approach it also frankly it won't matter who we have to go into the details here i mean it did strike me as an instance were maybe the less said by us the better i mean would you be happy with we say it means what it says all  substantially all means a whole lot or what you said town amount or so if you get into that circumstance or you get into the two circumstance which is there is a special ingredient here that has the special qualities mr manufacturer don't get close to that i think all these lawyers that will be there telling them don't get close to that and the thing will work out over time if we set a detailed test down the all those lawyers will be trying to figure out how in fact they actually do the thing without quite infringing the detail test yeah i think that's what worries me i think if you said that one was never enough and it needs to be a whole lot we would be quite happy all that work on the case as well means a lot we need a whole lot tantamount to the team well as i was trying to get out with the illustrations using this particular invention like you could get to a different answer even when you have the same number of components so if somebody supplied everything but the reaction buffer or this one you get cheaply and easily we think you would be liable but if they did everything except the prime next and that's really just an enormous amount of of what needs to happen here and we think they wouldn't have done something that's tantamount to supplying all the components and they wouldn't be liable because there be so much left to be done but i think we finally your answer in this invention but every other invention is going to have a different mix of the time the effort you know qualitative aspect of it again it does seem to be that once you get beyond looking at purely and quantitatively in terms of the components i don't think you've made much progress in clearing up the the litigation costs and confusion and emotional not sure how it fits in with the presumption against extraterritoriality or at least the clear implication of what i think the main thing that we're getting at is that and again as i was saying i don't think we have a strong strong position on how exactly you articulate the test our concern is that it needs to be pinned to an anti circumvention provision and the question is are you doing something that is pretty close to supplying all the components but now that i reason why is that almost all i mean if i said to you mr tripp a substantial portion of my former clerks have gone into government work how many would i mean well i think with any of these things that the interpretation of substantial depends entirely on its context and its purpose and so this term is used in just like a countless array of ways in the law you're not pinning this on the language here the substantial portion oh no it is almost all you are finding it from someplace else and where are you finding that from so we're trying to give a gloss on substantiality in light of the context and purpose of this statute as as we understand all of two seventy one f is designed to shore up the basic restriction against actually making a patented invention in the united states and then shipping it abroad both of the provisions get at that we think f one is situations that resemble the deep south paradigm you're then you take justice alito side pathetic which is a product where there is a single component that is accounting for ninety percent of the time and effort and whatever the third thing you mentioned was i think in the one is never enough f two is just a complete answer to that and if congress was going to draft a special rule about the supply of an individual super important component you would have expected to see an f two and it's just not there thank you council mr chief justice and may it please the court i think it's extremely important to understand how fundamentally the petitioners and the government misapprehend the nature of the harm that congress addressed in two seventy one as an acted when the deep south solution was proposed by senator mathias it precluded the supply with no active inducement requirement the supply of the material components of a combination that if combined in the united states would infringe in one thousand nine hundred eighty four hearing that's discussed at page twenty nine of our brief the united states the commissioner of patents came in and testified that the united states objected to that interpretation and he objected to the top down you know not clear not totally all and proposed instead  senator mathias amend his legislation to preclude what in essence is prohibited domestically into seventy one c that is contributory infringement that is the supply of a single specially design part where there are no substantial non infringing uses that in and of itself shows you how far and that is in fact to seventy one f two and that shows you how far from this all or substantially all paradigm congress was aiming now senator mathias his response right there and again we discussed it at page twenty nine was ok i understand that but what about he said the situation in all of the quote export or who send specific instructions on how to manufacture a product which would infringe a u s patent not withstanding the use of a staple product or products and say and commissioner mawson hoff's response was gee i hadn't thought of that that would be the analog to two seventy one b that is the induced infringement requirement which makes one liable as an infringer if you actively induce infringement by another and you're beginning with the dialogue and a senate hearing on the bill that's pretty weak even in the legislative history hierarchy but i don't think you mentioned the actual language of the statute will do that thank you mr chief justice and i'm not relying on the legislative history alone this is just one example in how does it help you because it's very hard for me to believe that senator mathias really wanted to interpret american patent law so that it runs the world when we've entered into a treaty which says british patent ball runs britain french france and so forth i mean is there something in admonition and and focus on the language i mention the history mr chief justice only because it's rare that an exchange in the legislative history translates so directly to the language of the statute as a result of that exchange which we're not relying on as interpretive authority senator mathias did exactly what the united states suggested he piece scrapped the original the material components and came back with what is now to seventy following on to seventy well i know but i mean you know you know the objection i don't i don't know how many of the people voting on the went back and read the senate hearing i understand the argument when you're talking about something in the senate report or the house report a fairly high level of connection to the statute but when you're wading into the particular dialogues at a particular hearing in one house and one committee of one house or the congress that's a real stretch ok let me let me let me put aside that exchange this that in fact the report does acknowledge what is obvious from the face of the statute and which i believe and this court recognized in microsoft versus a t which is the two seventy one provisions were modeled after induced infringement under two seventy one b and contributory infringement under two seventy one c but what about city and what about the text of the of the portion of the pages of your brief i think someone would think that's a quantitative determination and and would not think that well you know i think pages twelve to sixteen of your brief are particularly important so that would be a substantial portion of the of the pages of your brief so i let me go first to the question about the use of the word components rather than invention and then address your your question on the substantial number of pages yes this court explained in microsoft vs eighty into the use of the word components is that is congress's indication that the combinations that  jubal or physical combinations not method patents or on embodied software that's how you know what the scope of the combination is and if congress had said you know to export one or more rather than a substantial portion you would still use the plural because the plural is necessary to accommodate the instance in which it will in fact commonly be more than one now in your hypothetical if you're talking about a substantial portion of units that are indistinguishable from each other like pages of the brief then i can see that the more natural reading is a quantitative one but if you look  substantial is used in the relevant provisions the provisions of the patent code that my friend on the other side is averting to that is f two where substantial non infringing uses plainly at least partly qualitative or as they say warner jenkinson the doctrine of equivalence case where equivalency turns on substantiality of functions and methods and uses it is also qualitative our argument is that again we agree with the united states whether so the extent to which substantial is qualitative or quantitative depends on the context and so my only point mr chief justice just so that i'm not misunderstood here is congress when congress rather than what it started to do which was to count down the next something that counted down from all the components it instead scrapped it at the united states suggestion and started from the ground up from can tributary infringement which is just one component specially designed and active inducement which doesn't require the supply of any components now in this instance in this goes i think to justice briar's question about extraterritoriality congress was very careful of course as this court recognized in microsoft there are extra territorial implications because it concerns exporting things for something to be done in commerce overseas but congress was very very careful to make the conduct that the provision looks at domestic only it is you have to actively induce from the united states an active inducement this court explained in the grokster case means active steps to encourage like advertising or be easier all apply and you know has the same implications one way or the other whether you call substantial quantitative or qualitative clearly congress was aiming at less than all but it's a common place for for legislatures for completeness sake to say all or fewer than all or all or some and justice briar i do want to correct one thing you inadvertently kept saying this is all or substantially all it's not all o substantially all it's all or a substantial portion and as we point out in i believe page thirty five of our brief there are it is a commonplace low q shin state statutes and probably federal statutes to use all or substantially all which is more clearly quantitative and the state statutes these are often corporate last at it's the talk about the sale or alienation of all or substantially all of the assets in that instance the  illegal very you would ask the question whether the component or two components or leave the component out of it there are no components what he does is a sentiment list ok that said not illegal because in addition to active inducement you also have to supply a substantial portion of the complex back now so sad then the question becomes one of what limits congress wanted to put in an area where it isn't illegal now go ahead with your argument because what they're saying so if the sorry if the component is let me use two examples one i'll adopt justice alito is hypothetical let's assume that you have a patented pharmaceutical a tablet that you know we're mediates the disease it has as is is commonplace in these combinations it has one active ingredient and it has five inert ingredients that are easy easy to pick up as you can imagine the thing that is export it to the factory overseas which by the way is never liable under this statute because the statute only applies to conduct in the united states they they are happy to go down to their local warehouse and get t five in in gradients but the the molecule that does all the work they import from the united states now my friends on the other side would say and i believe mr tripp actually did say if that molecule has no non infringing uses it's illegal but if it's such a great molecule that it actually has another non infringing you say it also powers the injectable form of the drug pharmaceutical which is not patented that what congress intended to do was leave this giant donut hole in the rule between the active inducement of a commodity that is non be spoke component you have to you know there's no liability at all you have to supply all or nearly all of those inert components or you have to show that you know there  fact is a patent on the injectable form or take also the example that was that issue in this court's decision in quantico in puter of justice thomas explained for the court that that was a case that involved the patent exhaustion doctor and where intel was supplying a very sophisticated micro chip microprocessor that was used by quanta computer in a computer that had and other components and the question was whether intel's sale of the microprocessor two l g e which then sold it to quanta exhausted the patent and what this court said is well it didn't exhaust the patent on the combination because obviously it's only one or two components but because that microchip that microprocessor embodied  the what it said was the inventive aspect of the computer as a whole we're going to take account of that and hold that patent exhaustion applied and that would apply not only to my pharmaceutical example or justice you know one super important component it would apply to you know the quanta example where there may be say there are twenty components but three of them constitute the inventive aspect  enough and can be read in the common sense way to make clear that that is what congress intended to address in f one by in acting a spree vied there is active encourage meant for the combination by  wanted i'm going to answer your question but first of all let me simply correct a couple of statements by my friend i think in response to your earlier question justice ginsburg the evidence in this case was that as to three hundred plus million of the seven hundred million in sales two components were supplied there was a there was a concession at trial that both primers and the attack polymerase were supplied for almost half of the kits second of all tac polymerase not withstanding my friend's reference to what he found on the internet the testimony at trial is that  the tack polymerase that is necessary to make these s t r kits sufficiently raw reliable to be commercially saleable was and there was testimony about this this at trial was a form a very particular tack polymerase made by roche called ample of gold plus which is a particular form and was required and the testimony at trial was was manufactured by roche pro mega and life only in the united states this is not your amazon dot com tac that's now available now as to your question justice ginsburg the question of whether in this case whether it was stipulate was conceded there were five components although i must say i'm not sure that's right that of the five components one or two were exported as and the question it's interesting in this case because for other reasons life technologies and other points of the trial wanted to emphasize just how important and unique this form of tack was it didn't actually argue to the jury that it wasn't a substantial portion our lawyers argued in there in their initial closing in on rebuttal look these kits all had tacked polymerase that is a substantial component there was no request that the jury be instructed as to how you determine what is or isn't substantial and there's a way the federal circuit the question for the federal circuit was you know is one sufficient or is two sufficient to send if i could just finish my sentence and then all the federal circuit dealt with this as a substantial evidence question they weren't holding that one is sufficient in this case they asked whether there was sufficient evidence to go to the jury and they concluded that the answer was yes because all of the testimony and there were days of testimony about how polymerase works in the polymerase chain reaction all of the testimony from our witnesses and their witnesses emphasize just how important tact polymerase was so if you have seen actual i think you finish your sentence so thank you very much justice correct me but assume i hypothetically that there are three substantial components in this invention how is one substantial number of those three substantial because miss you can explain that i don't know how to give meaning to own or substantially all of the components and i do find the government's argument that it's hard to say that substantially is just something that's critical to the invention every steps critical to take out the data that doesn't work so it's not part of our argument and we don't think it's a fair reading of the federal circuit's decision that says look if the thing won't work without a component it's a substantial portion of the components that is a character of what the court decided the court as i said was engaging in substantial deferential substantial evidence review it recounted the fact that both and there wouldn't is and our witnesses underscored how important tac was it didn't catalog the pages and pages of testimony explaining why that's the case if you're asking me the hypothetical question if all the jury heard was and her jury heard nothing more than there are five components and three are important would that be sufficient for a jury to include conclude that one was a substantial component i wouldn't say so but that's a caricature of what actually happened in an eight day trial that was very much focused on tack polymerase and the particular form of tack that was supplied here and so this court could if this court agrees with us that there may be circumstances maybe it's the quantity example or maybe it's justice alito is example in which one component constitutes a subsequent constitute a substantial portion and therefore liability would apply if there were conduct that amounted to active inducement this court could then say ok we're going to roll up our sleeves and we're going to read the trial transcript and we're going to look at what the evidence was in order to determine whether on the case as it was tried here a reasonable juror could find that tack polymerase was that important well in order to do that it would be necessary to know what a substantial portion of the components means so what would you tell a jury that means so i would tell a jury you know following the dictionary definitions that substantial means considerable in importance and or amount and then you know the jury will and you may consider you know whatever factors are introduced in the case just as when as this court has explained when juries have to decide things like just adverting the your opinion announced today what is materiality in basic versus levenson this court rejected advocacy that you've got to tell the jury a lot of primary conduct depends on what materiality means and what this court said is the contours of that will be explicated based on the facts of the case and case law as it develops and in the patent context this court has been i wouldn't say single minded but very active in making in rejecting formulations that you know help a jury determine what standard and it then applies the facts and circumstances to determine it's met just as it does in negligence cases and in criminal law cases in many other contexts in which primary conduct is being adjusted here that this parade of horribles the g anybody who supplies a component from the united states could be liable if they were in the supply chain is so is manifestly incorrect they have to they have to number one know that there is a patent they have to know that the product is going to be combined with others they have to know that the combination if practiced in the united states would infringe they have to go beyond that and actively encourage send instructions or blueprints or something in order to do it end jury properly instructed based on the evidence has to ascertain gee this really is a substantial portion well this is not a k they say it's very complex they ship out hundreds of different things and that seems to me to give some help to the petitioner because it shows that a quantitative test is simply a good baseline to begin with and the more egregious cases it seems to me are have to anyway if we have if we can think of who are stories they're mostly covered by i have to honestly i don't think so justice kennedy i guess i'd make two points with respect to the supply chain that liability in this this is this is a provision modeled on two seventy one b it also includes the requirement of the domestic supply of a portion of the components but the sauce here what the where the rubber meets the road is that the the tortious conduct is the active incur active inducement and somebody who was simply responding to an order for supplies is in no way at risk in this case the reason that after two doesn't really solve the problem is again i think pointed out by justice alito is question you can have a molecule that has that does all the therapeutic work in the world and you get and it is protected against circumvention only if it has no substantial non infringing uses many of the most important innovative inventive components actually are terrific because they have two uses in my hypothetical it has a use for an injectable form of the drug which is not patented it is not reasonable to assume that the congress that i was going to make a reference to the exchange in the legislative history but the congress that responded to the government's suggestion like let's just have f two and said what we need we need f one to that is we  need the analog not just to contributory infringement but to induced infringement that they would have seen these two components as so far apart that there gears never mesh when as this court has said it is a commonplace that there is overlap between two seventy between contributory and induced infringement it's not a complete o oh no no not at all not at all what deep south said is the patent is on the combination if the combination occurs overseas there is no infringement there's no two seventy one a liability abroad congress didn't touch that what it said was ok to seventy one a is direct infringement to seventy one b and c or what we call secondary infringement it makes somebody liable even if they weren't infringing and because the combination overseas doesn't infringe the us patent we are going to win at these two provisions that address only us conduct the tort of two seventy one after the us conduct but you read the briefs the german companies and they said it's fairly common thing we've been making product x forever and now we invest in an american company and lo and behold we just want to import some wood you know to some wood and we can't do it because we'll be to this because wood isn't important some kind of is a thirty percent of some kind of a patented thing that we've been making prestigious prize so they're worried about it in other words i think that i don't think that they're worry is validated by a correct understanding of the statute their their concern makes no mention of the requirement that the u s manufacturer act the book not send would but send a substantial portion of the components which wouldn't be would or sailing solution or something like that and importantly has to take the additional steps of actively inducing and this court when it was underscoring what active inducement means said quote showing that the infringement was encouraged overcomes the law's reluctance to find liability when a defendant merely sells a commercial product suitable for some on lawful use and that is the that's the point the point here is that we're talking about conduct that occurs only in the united states that must require that must include the act of active inducement specific intent and knowledge and a component or components that constitute a substantial portion of the components of the be considered to be infringing no no i mean unless when you say life in the other words if from the united states any other company but life technologies could have taken this expired importation of the polymer is not reached a foreign manuf a foreign assembler who imports something from the united states is not touched by a provision that that is looks at and addresses only u conduct thank you council for minutes mr philips thank you mr chief justice i don't intend to use all four minutes first of all what i want to respond to is you know my friend has spent a lot of time talking about active inducement in the mens rea elements of two seventy one and i understand that and that's certainly a significant protection but congress did not take two seventy one b and c and simply apply them in the one context when they have to context w is there has to be a substantial portion of all or a substantial portion and that's a fundamentally significant independent requirement that cannot be satisfied in a situation where you're talking about a single component to sort of my are i just wanted to respond to your you know the three that are major it's important to recognize that two of those are clearly not coming from the united states so i go back to the point you made later which is if there are three major components uk and one of them be a substantial one i think the answer is it cannot be under those circumstances justice kennedy you asked the question about you know what are we supposed to do in these circumstances you know with supply chains and the answer is the answer that my colleague gave you was one that basically says this is a recipe for the trolls of the world to go and chase down every supply opportunity and do what send them notice that what you're sending is a staple article that's a major component of a piece that samak patent and that if you say peep sending that you're going to violate that patent and we're going to come after you and what's a gun to do that's going to destroy up the supply chain in the united states and the ultimate effects can be twofold either supply purchasers outside the u s will stop purchasing from inside the u s or u s manufacturers will go offshore and the one thing we know the two seventy one f would never intended to do was to accomplish that kind of an end to that kind of an impact negative impact on the u economy i urge the court to reinstate the the judgment as a matter of law that the district court entered thank your honour's thank you counsel the cases submitted