your third place this morning is number sixteen fifteen twenty four preston against nagel mr moore thank you your honor federal courts have declaratory judgment jurisdiction for cases just like this one in which a new technology company faces a potentially crippling just the structure of fourteen fifty forty unlike fourteen forty seven it does not say if there is not subject matter jurisdiction remand instead fourteen fifty four d says that if you have if if a claim for neither  a basis for removal under fourteen fifty four nor false in the court subject matter jurisdiction then remand that's very different than fourteen forty seven and so so curvature has this language about appealable why wouldn't this visit have another stanchions well that's well that's not what happened in osborne so when i was born there was no provision which said a wrongful remained can be appealed to the court the supreme court nonetheless found that that a it's a different certainly a difference your honor but i'm not sure it distinguishes this case was born because congress clearly the a i a intended to depart from what had been the prior practice under which we could have brought a separate action in federal court in allowing is your usually you have to look at the law police complaint you get that from fourteen fifty four d which says you only remounts if there is neither a basis for a move under fourteen fifty four which there clearly was here nor subject matter jurisdiction you need to have both of those criteria satisfied to email and which the district court again found that there was a proper basis for i mean that's all that get you is the notion that congressmen one of them are together but it doesn't get the further stuff of overriding fourteen forty seven see case in the first place but but second and more importantly and just as importantly in osborne the supreme court interpreted from the one way shuttle set up by the westfall act the congress intended there to be clear congress did not want these to go back to state court just as in the west all after congress did not want these claims addition in that case to be heard in state court rather than federal court i still don't understand that because you can see that  yourself in the position of the attorney general in the other case and say as long as you're the defendant can come up with some counter claims i don't have a claim to the state law claims you can always demand that if you are the federal court and there is no possible year  that if there is a patent claim that patently cannot be remanded to state court well you don't have a right to have the state claims or the federal court which is what is happening in the other case we do not have that right under appeals wouldn't apply right is there any other is there any counterpart for that line of thinking elsewhere you know we've looked pretty hard i'm not sure we found any and if i can explain the fortune fifty four point so fourteen fifty four s in other words it's not a and you you're not making the argument that the absence of a case or controversy is not a subject matter jurisdiction of ground we're not there it down to two minutes if i could turn to the opposition brief paragraph sixty nine states that defendants are quote using electromagnetic chemistry to modify elements and to manufacture platinum and they described it as the core of the most important y four a forty four thirty nine in the appendix you'll see what these claims are for it is basically what we're of accused of doing in paragraph sixty nine of the complaint using the electromagnetic in inducing a change in metallic elements through the use of a lot of her chemistry if there had been a letter which came to us which included all of the allegations between paragraph sixty and seventy two of the complaint it said that you are using our to the to do the jurisdictional issue that so are our basic point is that twenty eight u s c section fourteen forty seven is crystal clear that the lack of subject matter permits and of other types of other categories of claims but it does not express we prohibit remained of patent claims that were first filed in state court when a district court fin a lack of subject matter jurisdiction so it's unlike the one case where there really was an express statutory wasn't only my question i think my question was more to follow up on your friend's kind of point towards and of his argument that at fourteen forty seven doesn't for lack of subject matter jurisdiction and therefore there should be no appeal as far as the dismissal point that mr martin raising i do need to point out that there was no argument in the district court that the correct disposition court the counter claims were filed in state court then the case was removed if the district court finds on our motion to remain and that there is no subject matter jurisdiction which it did then the appropriate course is to remain the case to the state court where the same federal form in inserted in certain appropriate circumstances yes but i think fourteen fifty four d itself contemplates a parallel state and federal court actions that right if it were the wires tried and even after trial this court held that thirteen sixty seven that that the district court lacked supplemental jurisdiction over the state law claims which related to effect of a corporate opportunity concerning essentially the same device tried together or means that an appeal is available because there are compulsory counterclaims if they go and company filed a declaratory judgment action in federal court new one  after the massachusetts superior court dismisses the counterclaim there for lack of i guess their jurisdiction be preempted putting aside the case or controversy the declaratory judgment plaintiff or your counter claimant risks the loss of their appeal right if they do what the defendants did here to preserve that and that's that's the only thing that they lose by by doing that to preserve that example where the congressional purpose of having federal flames drawn forth it's going to be undermined by having the ownership example of a case where you know you do have patent issues and some arguably related generally related state law claims and those even after a trial this court ordered that that the state claim should have state court not federal court i know we may not be able to get to the question but the case of controversy requirement you said i think a couple of times in your brief you focused on how there's no general research exception to do seventy one infringement why it is and do remember right you allege that they basically hired all your researchers your right they search from their hired former  cells why would they are conducting of research to manipulate these atoms to create or molecules to create the materials they want not product and both that research and development companies is that there's there's no allegation or evidence of meaningful preparation for potential infringement or for significant concrete steps of activity that would aspects under the madam you can standard in terms of immediacy and actually reality is that the technology here ideals in technology be substantially fixed enough fluid and indeterminate and if you look at the allegations in the complaint there's really really is at a higher level is is what distinguishes this case from the other is abusing them when they are not planning to infringe what we're using them of is playing to avoid infringement by failing to pay patently in its face waiting until the patent planet planning to engage in an activity that would no longer be infringement because that there were alleging that they were they would do it after the after they've not even properly allowed the patents to lapse that's why i said planning to engage in activity that under your state law claims would in fact be infringing because their attempt to let the patents lapse would be defeated by those they look like well i think the importantly it would it would only occur after that they're going to engage in those activities right correct education is that while not necessarily shut down won't go into another line of work that utilizes the trade secrets and that's that's the that's the thrust of that was the thrust of the first month of litigation here with the trade secrets on the encrypted hard drive and so that they may use technology trade secret confidential proprietary information taken from c g that along to see t l c at beit jala but that would not be pat that nothing in the statute expressly required the result in osborne we have exactly the same situation here with the section fourteen fifty four where it's clear from the structure of the purpose of fortune fifty four a m d the ever is to judgment it could be a big problem here for the reasons we pointed out in our briefing if you look throughout their complaint including the substantive counts and not complain there is a theme that we are not only attempting to practice their patents at some indefinite future period when they lapse but that we're doing so today and if you look at paragraph sixty nine again which they've still never addressed if you look at the paragraphs which surround paragraph sixty nine it's clear that they're saying that that right now we are practicing their patents they describe this or that where we're currently practicing their most valuable intellectual property they say in two separate paragraphs that they would be worthless without their patents so it's pretty clear they