this case involved an immediate and real controversy of a substantial nature of between parting with an adverse legal interest not only does the district court's decision conflict with certain decisions from this court and certain precedent from this court it conflicts with leading precedent and very recent decisions on the subject of declaratory relief for instance just a few months ago in three m vs a very this court held that if a party had actually been charged with infringement there is necessarily a case or controversy that holding from three m actos the same holding from this court and what may be the leading decision on declaratory judgment jurisdiction the arrowhead case so if you have expressed allegations of infringement this court has said no further inquiry is nuts here there are express allegations of infringement and not only about it's by a high ranking official the record clearly reflects that the then president of biosafety call the president of the cremation division of matthews is that the trade show as it is the then president applies and again that gentleman from bio safe approaches mathews president and does again equipment dismayed scar it is what it is the licensee from the scottish company resum sion and yes it sells it in the united states in north america and the at the eventually users director our of the patents here have kind of specific parameters within which the method must be operated and how could the sue you for infringement at all if you're not operating because they if you're not operating if they don't know if you're operating within the parameters and they have to know the parameters to accuse you of infringing they could sue us your honor under multiple theories they could sue us for inducing infringement if you are instructing someone to infringe the patent by practicing within the parameters do you do  so you throw out an inducement which is more difficult but you have the same basic fact that you don't operate and nor do you instruct anyone to operate within the parameters of the claimed invention but your honor we do instruct the users the funeral homes on how to operate the equipment i said we don't instruct them to operate  within the parameters of the patent because if we instructed them to operate within the parameters of the patent we would be instructing them to infringe we are the clerestory inducing yet so that you don't so once again there's no basis for them to sue you right and there's no basis for you to sue for declaratory judgment well i disagree on that we are indeed seeking a declaration of non infringement and indeed by the nature of that we you can operate these outside the parameters of the patent what iowa state is say they are pointing to certain parameters specifically the temperature the ph level and the in that leading case this court said that argument does not come with good grace because you said you don't know how it will operate but you knew enough to accuse the declar tory plaintiffs of infringement and in that regard your honor i respectfully direct the court to biosafety counsel's february second alkaline hydrolysis process that sets the temperature within a specified range has a specified ph level and takes place in a pressurized stuff that's says about its patent later in that same letter discussing the process that matthew's equipment it says in that letter hey your process also has a pressurized tussle your process will be at a certain temperature same as ours your process will have a ph level same about same  that process is within our rights that are not used so there are arguments that when we don't know what you are going to do what the temperatures will be said that you knew enough to make the othe accusation you knew enough to tell our customers not to buy it so it too does not come with great and in the arrowhead case the court the involves three configurations of a product that would employ a process that arguably would infringe it hadn't been commercially deployed and they declared to the defend this issue is properly joined even though there had been no commercial deployment of those three configurations intact just like here where bio cat to act each of the potential there's we don't have any evidence that anyone is directly infringing the pap yes well the same holds true for the three configurations and tactic they hadn't been used in cats i get involved to put in catalyst in if that hadn't been used the eventual users as soon as there used a willing phrase and that may not may or may not be the case in your actuation right i don't think that was the case in cat tech either i think after the district court assumed a declaratory jurisdiction that court said there was that there was no one frenchman that grand of declaratory plaintiff really so just as in here obviously we are seeking a declaration of non infringement it cannot be imposed on us to prove that there would be infringement if it were actually used what happened in the arrowhead case again with that passage talking about the great it's that it has to be substantially similar has to be in the ballpark as to be arguable perhaps for there to be declaratory jurisdiction we're sitting at that liberation of non infringement obviously we're not going to say if this is deployed it will infringe we're saying if it's deployed it's not going to infringe they are the ones who have joined the issue by going into the marketplace and telling others that this is going to cause an infringement if you take it take this to its academic conclusion parties in a similar circumstance we're making it the other party selling a product that will deploy a process it's ready to go to market it's out there but no one has yet news that we're ready and willing to sell and a party in bioethics position takes out advertisement in the wall street journal the new york times  that and says you better not buy that product because if you use a little bit of french and that's wrong we don't think it will in france but they put that out there and they suppress all the men and no one ever buys it and no one ever deploy problem a problem with the district court's decision is a side by side comparison of the state law claims for arson as the disposition of the federal government on the state law side the court accepts that they made accusations of infringement and says ok they made it they told your customers it was infringing it was objectively reasonable for them to do so but no bad thing but no object so no bad say so it's objectively reasonable they are licensed to say this to you on the state law but now side by side with the federal claim the court says well i don't really know what'll happen down the line so you can't come in and challenge what they cap tech the parameters used in the operation to meth use devices are not settled that's a finding of fact by the district court that they have no shorting and that's clearly erroneous and that was supported by the evidence  work it out a lot of these cases claim charts actually get exchanged in this case we couldn't do a claim charge the district court couldn't do a clean shirt nobody can do a clean chart we're not asking them to admit it for and of course we're not admit that but at their original complaint we had it with a motion dismissed immediately and said this case is not right essentially same arguments instead of replying they filed their amended complaint so they knew where we were coming from we were saying this case isn't ready yet and so if they really thought the case was ready they could a compartment and say here's all the information you need here's a clean chart we say for element a we don't infringe because we're going to do it this way you know if they do that maybe we look at it we say you know all these a cover not to sue if that's what you plan to doing but we don't know what that what they're going to do and they leave this as a mystery that this entire process controversy i don't think so your honor because the cases here talk about legal joining of the issues that the controversy being so as long as you don't issue a claim chart you can write those advertisements in usa today saying don't buy those matthews products because they will in french let's be clear on this this is an important customers of infringement we came back and said under twelve bill if all for example on the allegations that we've done something wrong in the marketplace which of all what were the specific statements made you can't just simply because the specific statements matter you operate the master's equipment in a certain way if you take our patents in consideration we don't know how they're going to operate i think if you took out we were saying don't buy the method we're simply saying if you buy the oven with got the recipe for the apple pie then cherry pies or you want to still make our apple pie and i think that's a different in character from what we're talking about what we don't know is are there plans to make apple pies or cherry pies and that's say to people i have a p equipment you don't use it because our patents that i think lowers the issue and that stock on the immediacy side what the district court said was you're nine months from installing a machine you haven't showed me subtle parameters why don't we wait for this case once you install the machine if you still think you have an issue then bring your case that and so i think when you look at the many munin the fatality of the circumstances and looking at the quality of the statements we were making they're not very high while your letter makes vague general references to certain pattern claims and presses parameters your allegations are so vague and incomplete that we are frequently at a loss to respond to the quality of the quote allegations of infringement here should be taken into account that the taliban c that and letters like this the kind of glance off the issue i think of the tally of some circumstance when combined with the fact that the district court finds that there parameters aren't subtle and that's a finding of fact it's not clearly erroneous i sa arguments multiple times and again an arrowhead more recently in our us and in each pic celeron this court has said look we know lawyers can be crafty in fact the court of said no competent counsel may send a claims chart in the circumstance but if the issue is joint if someone suggests that there's patent infringement that is enough to create a case or controversy and on the usa today advertising yes of course they haven't done that but i'll tell you going to stuart enterprises calling them for a meeting to indiana to buy a face off us and telling them you better not buy the patents better not buy the products from matthews because they infringe our patents that has close to the same effect on us that's the largest buyer so you can i submit iosif can't be immunized from going to the marketplace suppressing the demand for our product and saying well no one's used it thank you thank you