United States Court of Appeals 

for the Federal Circuit ______________________ 

NEXLEARN, LLC,

Plaintiff-Appellant

v.

ALLEN INTERACTIONS, INC.,

Defendant-Cross-Appellant

______________________ 

2016-2170, 2016-2221

______________________ 

Appeals from the United States District Court for the 

District of Kansas in No. 6:15-cv-01294-EFM-KGG, Judge 

Eric F. Melgren.

______________________ 

Decided: June 19, 2017 

______________________ 

 PAUL K. VICKREY, Vitale Vickrey Niro & Gasey, Chicago, IL, argued for plaintiff-appellant. 

MARTIN B. PAVANE, Cozen O'Connor, New York, NY, 

argued for defendant-cross-appellant. Also represented 

by DARREN SCOTT MOGIL. 

______________________ 

Before MOORE, SCHALL, and HUGHES, Circuit Judges.

MOORE, Circuit Judge.
2 NEXLEARN, LLC v. ALLEN INTERACTIONS, INC. 

NexLearn, LLC appeals from the District of Kansas’ 

dismissal of its complaint for lack of personal jurisdiction. 

For the reasons discussed below, we affirm.

BACKGROUND

On September 24, 2015, NexLearn filed suit against 

Allen Interactions, Inc. (“Allen”) in the District of Kansas 

alleging infringement of U.S. Patent No. 8,798,522 (“the 

’522 patent”) and breach of contract. NexLearn alleged in 

its complaint that on February 10, 2009, Allen and 

NexLearn entered into a nondisclosure agreement 

(“NDA”) to allow Allen to learn more about NexLearn’s 

social simulation software called SimWriter®. It alleged 

that pursuant to the NDA, NexLearn provided Allen with 

a trial version of SimWriter, which Allen accessed “on 

several occasions, after which Allen stated it was no 

longer interested in pursuing a deal with NexLearn.” 

J.A. 38. It alleged Allen thereafter developed its social 

simulation software called ZebraZapps based on information it “learned from its analysis of the confidential 

demo,” giving rise to NexLearn’s claims of patent infringement and breach of contract. J.A. 38–39. NexLearn 

asserted infringement of at least claims 1, 3–9, 11, 12, 14, 

and 25 of the ’522 patent, which is directed to a computer 

program for social simulation, and asserted breach of the 

NDA by misusing NexLearn’s confidential information. 

The NDA contains a choice-of-law provision stating Kansas law governs the agreement. 

Allen moved to dismiss NexLearn’s complaint for lack 

of personal jurisdiction.1 Allen is a Minnesota corporation 

 

1 Allen alternatively moved for failure to state a 

claim upon which relief could be granted. It argued that 

if it was subject to personal jurisdiction in Kansas, 

NexLearn’s claims should be dismissed because the 

’522 patent is directed to unpatentable subject matter and 
NEXLEARN, LLC v. ALLEN INTERACTIONS, INC. 3

with its principal place of business in Mendota Heights, 

Minnesota. It argued it was not subject to specific or 

general jurisdiction in Kansas due to its limited contacts 

with the forum, which it argued amounted to a single sale

unrelated to its ZebraZapps product and represented less 

than 1% of its revenue over the past five years. It argued 

the NDA’s choice-of-law provision did not subject it to an 

action in Kansas because NexLearn’s complaint asserted

that its breach of contract claim was supplemental to its 

patent infringement claim, J.A. 36, requiring NexLearn to 

establish personal jurisdiction over its infringement claim 

in order to bring its contract claim.

NexLearn opposed Allen’s motion and filed additional 

evidence to support its claim that the court could exercise 

personal jurisdiction over Allen under a specific jurisdiction theory. NexLearn’s president, Dennis Rees, filed a 

declaration stating Allen agreed to an End-User License 

Agreement (“EULA”) when it accessed the SimWriter 

trial. The EULA specifies that “any dispute arising out of 

or related to this Agreement or the Product must be 

brought exclusively in a court sitting in Wichita, Kansas.” 

J.A. 216. Mr. Rees declared that since launching ZebraZapps in 2011, Allen “continually sent direct emails 

regarding ZebraZapps to two NexLearn employees.” 

J.A. 187 ¶ 2. He declared that another NexLearn employee was offered a free trial of ZebraZapps after attempting 

to purchase ZebraZapps from Allen’s website without 

success. He declared Allen specifically targeted Kansas 

residents by including Kansas in the address selector’s

dropdown menu on its ZebraZapps website. The declaration summarized Allen’s activities with a trade associa-

 

NexLearn failed to allege breach of contract prior to the 

NDA’s expiration in 2011. Because we affirm the district 

court’s holding that it lacked personal jurisdiction over 

Allen, we do not reach these alternative arguments.
4 NEXLEARN, LLC v. ALLEN INTERACTIONS, INC. 

tion, which disseminated a magazine to Kansas residents 

that included an advertisement for Allen. 

Drawing all reasonable inferences in favor of 

NexLearn, the district court held that NexLearn failed to 

allege that Allen had sufficient contacts with Kansas to 

permit the exercise of specific jurisdiction. It determined 

the NDA and EULA Kansas choice-of-law and forumselection provisions were not relevant for specific jurisdiction over NexLearn’s patent infringement claim. It held

that because five of Allen’s six emails to NexLearn employees were sent before the ’522 patent issued on August 5, 2014, NexLearn’s patent infringement claim could 

not have arisen out of or related to these emails. It held 

Allen’s sole post-issuance email, as well as its offer of a 

free trial of ZebraZapps to a NexLearn employee, could 

not form a basis for exercising jurisdiction because these 

contacts were manufactured by NexLearn’s unilateral 

acts. The NexLearn employees, it reasoned, received 

Allen’s emails only because they subscribed to Allen’s 

mass emailing list and received a free trial of ZebraZapps 

only because of a purchase attempt. Regarding Allen’s 

ZebraZapps website, the district court held the website 

alone, absent evidence of an actual sale, was insufficient 

to confer specific jurisdiction. It held neither Allen’s 

single sale of an unaccused product to a Kansas resident

nor its general advertisement in a trade publication was

relevant to NexLearn’s patent infringement claim. Because it held it lacked personal jurisdiction over 

NexLearn’s patent infringement claim, and because 

NexLearn did not assert breach of contract as an independent basis for the district court’s subject matter jurisdiction, the district court granted Allen’s motion to 

dismiss.

NexLearn appeals. We have jurisdiction under 28 

U.S.C. § 1295(a)(1).
NEXLEARN, LLC v. ALLEN INTERACTIONS, INC. 5

DISCUSSION

“Personal jurisdiction is a question of law that we review de novo.” Autogenomics, Inc. v. Oxford Gene Tech. 

Ltd., 566 F.3d 1012, 1016 (Fed. Cir. 2009). We apply 

Federal Circuit law when reviewing claims “intimately 

involved with the substance of the patent laws” and the 

law of the regional circuit when reviewing state law 

claims. Elecs. for Imaging, Inc. v. Coyle, 340 F.3d 1344, 

1348 (Fed. Cir. 2003). Where, as here, the district court 

decided personal jurisdiction “based on affidavits and 

other written materials in the absence of an evidentiary 

hearing, a plaintiff need only to make a prima facie showing that defendants are subject to personal jurisdiction.” 

Avocent Huntsville Corp. v. Aten Int’l Co., 552 F.3d 1324, 

1329 (Fed. Cir. 2008). We “accept the uncontroverted 

allegations in the plaintiff’s complaint as true and resolve 

any factual conflicts in the affidavits in the plaintiff’s 

favor.” Id. To make a prima facie showing, we ask 

“whether a forum state’s long-arm statute permits service 

of process and whether assertion of personal jurisdiction 

violates due process.” Autogenomics, 566 F.3d at 1017. 

The Kansas Supreme Court has interpreted Kansas’ longarm statute to extend jurisdiction to the fullest extent 

allowed by due process. Merriman v. Crompton Corp., 

146 P.3d 162, 179 (Kan. 2006). 

Pursuant to 28 U.S.C. § 1367(a), “it is well established—in certain classes of cases—that, once a court has 

original jurisdiction over some claims in the action, it may 

exercise supplemental jurisdiction over additional claims 

that are part of the same case or controversy.” Exxon 

Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 

(2005). To exercise supplemental jurisdiction, the district 

court “must first have original jurisdiction over at least 

one claim in the action.” Id. at 554.
6 NEXLEARN, LLC v. ALLEN INTERACTIONS, INC. 

A. NexLearn’s Patent Infringement Claim

NexLearn alleges that personal jurisdiction exists for 

its patent infringement claim, the only claim over which it 

asserts the district court possesses original jurisdiction. A 

district court can exercise personal jurisdiction over an 

out-of-state defendant pursuant to either general or 

specific jurisdiction. Under general jurisdiction, a district 

court can “hear any and all claims against [out-of-state 

defendants] when their affiliations with the State are so 

‘continuous and systematic’ as to render them essentially 

at home in the forum State.” Daimler AG v. Bauman, 134 

S. Ct. 746, 749 (2014) (citation omitted). Specific jurisdiction instead “focuses on the relationship among the defendant, the forum, and the litigation.” Walden v. Fiore, 

134 S. Ct. 1115, 1121 (2014) (alteration omitted). To

comport with due process, the out-of-state defendant must 

have “minimum contacts” with the forum State “such that 

the maintenance of the suit does not offend traditional 

notions of fair play and substantial justice.” Int’l Shoe Co.

v. Washington, 326 U.S. 310, 316 (1945). At oral argument, NexLearn stated it alleged both general and specific jurisdiction. Oral arg. at 15:03–16:10. NexLearn did 

not argue general jurisdiction in its briefing to us or below 

to the district court. See NexLearn Br. 10; J.A. 7 

(“NexLearn does not allege general jurisdiction but rather 

that Allen had minimum contacts with Kansas based on 

specific jurisdiction.”). We thus decline to address general 

jurisdiction.

To determine whether specific jurisdiction exists we

apply a three-part test, in which we determine whether: 

(1) the defendant purposefully directed its activities to the 

forum State; (2) the claims arise out of or relate to those

activities (collectively, the minimum contacts prong); and 

(3) the assertion of jurisdiction is reasonable and fair. 

Avocent, 552 F.3d at 1332. We hold that NexLearn failed 

to allege sufficient minimum contacts with Allen to war-
NEXLEARN, LLC v. ALLEN INTERACTIONS, INC. 7

rant the exercise of specific jurisdiction over its patent 

infringement claim in Kansas.

1. Contacts Predating ’522 Patent Issuance

Many of the contacts NexLearn asserts confer specific 

jurisdiction over Allen occurred prior to the ’522 patent’s 

issuance. Five of the six emails NexLearn cites were sent 

before August 5, 2014. Allen’s actions relating to 

NexLearn’s SimWriter trial—executing the NDA, accessing the trial, and agreeing to the EULA—happened over 

five years before the ’522 patent issued. Various other 

contacts alleged by NexLearn, including Allen’s presentations at trade association conferences in which Kansas 

residents are members and Allen’s advertisement in a 

trade association magazine, took place before August 5, 

2014. 

Allen’s pre-issuance emails, presentations, and advertisements are not relevant to NexLearn’s claim that Allen 

“infringes at least claims 1, 3–9, 11, 12, 14, and 25 of the 

’522 patent.”2 See J.A. 39. Specific jurisdiction requires 

that the plaintiff’s suit “arises out of or relates to the 

defendant’s contacts with the forum.” Daimler, 134 S. Ct. 

at 749 (citation and alterations omitted). If a defendant 

purposefully derives benefit from his activities within a 

forum, he may be sued in that forum “for consequences 

that arise proximately from such activities.” Burger King 

Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985). Allen’s 

 

2 Because our review is limited to whether Allen is 

subject to specific jurisdiction in Kansas, our analysis 

focuses on whether Allen’s pre-issuance contacts are suitrelated. We recognize of course that Allen’s contacts could 

be relevant to a general jurisdiction analysis, which 

permits a court to exercise jurisdiction based on contacts 

unrelated to the underlying action. See Walden, 134 

S. Ct. at 1121 n.6.
8 NEXLEARN, LLC v. ALLEN INTERACTIONS, INC. 

emails, presentations, and advertisements predating 

August 5, 2014 cannot constitute infringing acts giving 

rise to NexLearn’s claim because they did not occur “during the term of the patent.”3 35 U.S.C. § 271(a). Because 

NexLearn’s infringement claim does not proximately arise 

from these actions, they are not relevant to our specific 

jurisdiction inquiry. 

To the extent Allen’s SimWriter trial activities are 

“related” to Allen’s later development of ZebraZapps, they 

are too attenuated to form a sufficient contact giving rise 

to NexLearn’s claim of infringement. NexLearn’s patent 

infringement claim does not arise proximately from these 

activities which occurred before NexLearn ever had a 

property right. This conduct is too far removed from

NexLearn’s infringement claim to be a relevant jurisdictional contact.

The provisions within the NDA and EULA likewise do

not render Allen subject to specific jurisdiction in Kansas. 

Burger King makes clear that the NDA’s Kansas choiceof-law provision “standing alone would be insufficient to 

confer jurisdiction.” 105 S. Ct. at 482. Unlike the facts 

surrounding the contract in Burger King, the NDA in this 

 

3 In some circumstances a defendant’s suit-related 

contacts may extend to activities that occurred long before 

the plaintiff’s cause of action became ripe. See, e.g., 

Burger King, 471 U.S. at 479–80 (considering the defendant’s forum-related contract negotiations in breach of 

contract suit). But in no way does NexLearn connect 

Allen’s independent pre-issuance actions with any later 

infringing conduct to render them relevant. See Synthes 

(U.S.A.) v. G.M. Dos Reis Jr. Ind. Com de Equip. Medico, 

563 F.3d 1285, 1297–98 (Fed. Cir. 2009) (holding display 

of products at a trade show after the patent’s issuance 

and “for the purpose of generating interest in infringing 

products” was a relevant jurisdictional contact).
NEXLEARN, LLC v. ALLEN INTERACTIONS, INC. 9

case does not otherwise evidence Allen’s “deliberate 

affiliation with the forum State and the reasonable foreseeability of possible litigation there.” Id. The NDA, by 

its terms, expired in 2011. J.A. 44 ¶ 19. We fail to see 

how a provision in an expired NDA stating the “Agreement shall be governed by the laws of the State of Kansas” shows reasonable foreseeability of litigation in 

Kansas over NexLearn’s claim of infringement of the 

’522 patent. See J.A. 43 ¶ 9. While the EULA does not 

bear an expiration date, it suffers the same deficiency. 

The EULA requires that “any dispute arising out of or 

related to this Agreement or the Product must be brought 

exclusively in a court sitting in Wichita, Kansas.” 

J.A. 216. This provision only recites forum selection for 

disputes arising out of the EULA or related to the SimWriter product. It does not specify the forum for disputes 

relating to infringement of the ’522 patent or relating to 

the ZebraZapps product. Nor does NexLearn’s complaint

even assert breach of EULA; NexLearn’s breach of contract claim rests on breach of the NDA. J.A. 38 ¶ 11 

(“Allen’s misuse of NexLearn’s confidential information 

constitutes a breach of the NDA.”). 

We agree with the district court’s determination that 

Allen’s contacts predating the issuance of the ’522 patent 

are not relevant contacts for establishing specific jurisdiction over NexLearn’s patent infringement claim. 

2. Allen’s ZebraZapps Website & Contacts Postdating 

’522 Patent Issuance

NexLearn alleges Allen’s operation of an interactive 

ZebraZapps website creates a substantial connection with 

its patent infringement claim in Kansas. According to 

NexLearn, “Allen has specifically targeted Kansas residents in facilitating the purchase of ZebraZapps” on its 

website by allowing Kansas residents to select “Kansas” 

from a dropdown menu in the billing-address section 

when ordering ZebraZapps. J.A. 187–88 ¶ 4. NexLearn 
10 NEXLEARN, LLC v. ALLEN INTERACTIONS, INC. 

also identifies two instances in which Allen interacted 

with NexLearn employees residing in Kansas after the 

’522 patent issued. On September 9, 2014, Allen sent an 

email to its email subscribers, which included NexLearn 

employees, describing new features in ZebraZapps. 

J.A. 205–07. In July 2015, Allen’s Director of Customer 

Success Services offered a NexLearn employee a free trial 

of ZebraZapps after she unsuccessfully attempted to 

purchase the product from Allen’s website. J.A. 188 ¶ 5. 

We agree with the district court that Allen’s ZebraZapps website alone does not render it subject to specific 

jurisdiction in Kansas. See J.A. 11–14. We also agree 

with the district court that the addition of Allen’s two 

contacts with NexLearn employees is insufficient to confer 

specific jurisdiction over Allen. But we do not agree with 

the district court’s analysis in reaching that conclusion.

We evaluate Allen’s website as we would any other 

contact under a specific jurisdiction theory; for there to be 

minimum contacts, there must be evidence that Allen 

purposefully availed itself of Kansas and that NexLearn’s 

claim arises out of or relates to those contacts.4 The 

existence of Allen’s website, without more, is insufficient 

to show that Allen has minimum contacts with Kansas. 

Cf. Nuance Commc’ns, Inc. v. Abbyy Software House, 626 

F.3d 1222, 1235 (Fed. Cir. 2010) (holding “this court 

cannot determine that Abbyy Software purposefully 

availed itself of the privilege of conducting activities in 

California by some affirmative act or conduct, and that 

Nuance’s claims arise out of those activities,” although 

Abbyy Software maintained a website that “promotes the 

 

4 We agree with the district court’s decision not to 

apply the Zippo “sliding scale” test to assess personal 

jurisdiction in this case. See J.A. 12–13 (citing Zippo Mfg. 

Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. 

Pa. 1997)).
NEXLEARN, LLC v. ALLEN INTERACTIONS, INC. 11

sale of [the infringing] products in California”); Campbell 

Pet Co. v. Miale, 542 F.3d 879, 884 (Fed. Cir. 2008) (not 

relying on defendant’s website as a contact for specific 

jurisdiction and specifying in the general jurisdiction 

context, “maintenance of a website is also insufficient to 

give rise to general jurisdiction over the defendants in the 

State of Washington, as the website is not directed at 

customers in Washington and does not appear to have 

generated any sales in Washington”). We addressed 

whether a defendant’s website gave rise to specific jurisdiction in Trintec, in which Trintec alleged Pedre was 

subject to specific jurisdiction in the District of Columbia 

based on “Pedre’s use of its own interactive website to 

advertise its products, which Trintec alleges customers in 

the District of Columbia can use to purchase those products from Pedre.” Trintec Indus., Inc. v. Pedre Promotional Prods., Inc., 395 F.3d 1275, 1281 (Fed. Cir. 2005). We 

explained the difficulty with that specific jurisdiction 

theory was that “Pedre’s website is not directed at customers in the District of Columbia, but instead is available to all customers throughout the country.” Id. Absent 

evidence that “any District residents have ever actually 

used Pedre’s website to transact business,” Trintec’s 

allegations (together with other evidence of Pedre’s contacts) were insufficient to show specific jurisdiction existed. Id. at 1281–82. 

Allen’s inclusion of Kansas in its dropdown of all 

states on its website is not enough to subject Allen to 

jurisdiction in Kansas. Allen’s address selector may 

indicate its amenability to selling ZebraZapps to Kansas 

residents, but it does not establish minimum contacts 

arising out of or related to the infringement claim. While 

a Kansas resident could purchase ZebraZapps from 

Allen’s website, what is missing is any evidence that such 

a sale has taken place. Apart from the NexLearn employee that unsuccessfully attempted to purchase ZebraZapps, 

NexLearn does not even allege that any Kansas resident 
12 NEXLEARN, LLC v. ALLEN INTERACTIONS, INC. 

has accessed Allen’s ZebraZapps website. There is no 

evidence that Allen’s website facilitated the making, 

using, offering, or selling of ZebraZapps in Kansas in 

order to connect Allen’s website with NexLearn’s patent 

infringement claim. In this respect, Allen’s website is 

conceptually no different than operating an out-of-state 

store. That a store would accept payment from a hypothetical out-of-state resident and ship its product there 

does not create a substantial connection for an infringement claim between the store and the hypothetical resident’s forum State. The store’s willingness to enter future 

transactions with out-of-state residents does not, without 

more, show purposeful availment of each State in which it 

would, but has not yet, provided or even offered a sale. 

Something more is needed—whether it be actual sales, 

targeted advertising, or contractual relationships—to 

connect the defendant’s infringing acts of making, using, 

offering, or selling its product with the forum State. What 

is sufficient may vary from case to case, but it cannot be 

that the mere existence of an interactive website, like the 

existence of an out-of-state store, is “suit-related conduct . . . creat[ing] a substantial connection with the 

forum State.” Walden, 134 S. Ct. at 1121.

The addition of Allen’s two post-issuance contacts 

with NexLearn employees do not suffice to render Allen

subject to jurisdiction in Kansas. We do not agree with 

the district court’s determination that Allen’s sole postissuance email to NexLearn employees was irrelevant 

because NexLearn “unilaterally expressed an interest in 

ZebraZapps or Allen.” J.A. 10–11. It is true that when 

determining whether a defendant has minimum contacts 

with a forum State, the “unilateral activity of another 

party or a third person is not an appropriate consideration.” Helicopteros Nacionales de Colom., S.A. v. Hall, 466 

U.S. 408, 417 (1984); see also Walden, 134 S. Ct. at 1122

(“[T]he relationship must arise out of contacts that the 

‘defendant himself’ creates with the forum State.” (quot-
NEXLEARN, LLC v. ALLEN INTERACTIONS, INC. 13

ing Burger King, 471 U.S. at 475)). But Allen’s email to 

NexLearn employees is not categorically irrelevant simply 

because the NexLearn employees solicited the email. It is 

undisputed that Allen accepted these employees’ requests 

to receive emails about ZebraZapps and Allen. It is also 

undisputed that Allen thereafter emailed these NexLearn 

employees about ZebraZapps and its company. Allen 

extinguished the unilateral nature of these contacts when 

it affirmatively responded to these employees’ requests by 

including them on its email subscription list and sending 

an email to these subscribers.

While Allen’s post-issuance email is relevant to our 

specific jurisdiction inquiry, it is not enough to confer 

specific jurisdiction. The sole post-issuance email in the 

record consists of a mass-email advertisement about “new 

features, updates, and enhancements” made to ZebraZapps. J.A. 205–06. At the end of the email, Allen instructs the recipients of its email to “[l]earn more about 

the new features and start creating exceptional e-learning 

solutions with ZebraZapps today” and provides a link to 

its website. J.A. 207. We have previously held that 

similar contacts, in which an advertisement was “nationally distributed and not limited to [the forum State],” are

“attenuated evidence [that] does not show that the [forum 

State] was a target market.” Compare Grober v. Mako 

Prods., Inc., 686 F.3d 1335, 1347 (Fed. Cir. 2012) (national advertisement mailed twice per year did not show the 

defendant purposefully availed itself of the privileges of 

conducting activities within California), with Quill Corp. 

v. North Dakota, 504 U.S. 298, 304, 308 (1992) (defendant’s mailing of 24 tons of catalogs and flyers each year 

into North Dakota subjected it to specific jurisdiction 

there). While Kansas need not be the only target of 

Allen’s conduct, Allen’s mailing of one advertisement to 

all of its nationwide subscribers does not “create a substantial connection with the forum State.” Walden, 134 

S. Ct. at 1121. We also question whether NexLearn’s 
14 NEXLEARN, LLC v. ALLEN INTERACTIONS, INC. 

infringement claim could arise out of or relate to this 

advertisement because the advertisement does not appear 

to expressly offer ZebraZapps for sale. “[M]ere advertising and promoting of a product may be nothing more than 

an invitation for offers.” Grp. One, Ltd. v. Hallmark 

Cards, Inc., 254 F.3d 1041, 1048 (Fed. Cir. 2001); see also 

3D Sys., Inc. v. Aarotech Labs., Inc., 160 F.3d 1373 (Fed. 

Cir. 1998) (holding price quotation letters were offers for 

sale under § 271 where they contained “a description of 

the allegedly infringing merchandise and the price at 

which it can be purchased”). Regardless of whether 

Allen’s single email could qualify as an offer for sale 

under § 271(a), it is insufficient to establish minimum 

contacts with Kansas in this case.

For similar reasons, we do not agree with the district 

court’s determination that Allen’s offer of a free ZebraZapps trial to a NexLearn employee is irrelevant to our 

specific jurisdiction inquiry. See J.A. 14 (explaining it 

“cannot consider those contacts that are created or manufactured by the plaintiff for purposes of establishing 

personal jurisdiction”). NexLearn did not unilaterally 

cause this contact to arise; Allen purposefully directed 

activities to Kansas when it offered the NexLearn employee the free trial. So long as Allen’s offer of the free 

ZebraZapps trial qualifies as or relates to a make, use, 

offer, or sale of an accused product under § 271(a), we fail 

to see why this contact is irrelevant to NexLearn’s patent 

infringement claim simply because the recipient was a 

NexLearn employee. If Allen’s offer of the free trial 

constituted or gave rise to an act of infringement, it is 

immaterial whether or not the offer was made to an 

employee of the patent holder. This contact is jurisdictionally relevant to NexLearn’s patent infringement 

claim.

As with Allen’s single post-issuance email to 

NexLearn employees, however, Allen’s single offer of a 

free ZebraZapps trial is too attenuated to establish mini-
NEXLEARN, LLC v. ALLEN INTERACTIONS, INC. 15

mum contacts with Kansas. In light of the “relationship 

among the defendant, the forum, and the litigation,” 

Allen’s single offer is too insignificant to justify haling it 

into court in Kansas. See Walden, 134 S. Ct. at 1121 

(alteration omitted); cf. J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 888–89 (2011) (Breyer, J., concurring) 

(“[T]he Court, in separate opinions, has strongly suggested a single sale of a product in a State does not constitute 

an adequate basis for asserting specific jurisdiction over 

an out-of-state defendant . . . .”). It does not create a 

substantial connection with either Kansas or NexLearn’s 

cause of action. We have previously held that a defendant’s contacts with a forum State, similar to those here, 

were insufficient to establish minimum contacts. In 

Maynard, for example, we held Maynard failed to allege 

Philadelphia Cervical was subject to specific jurisdiction 

in Kentucky where Philadelphia Cervical “(1) sent a letter 

to Maynard in Kentucky dated December 1, 1992, 

(2) maintained an Internet web page, and (3) sold a Philadelphia Cervical product to Maynard in Kentucky.” See 

Maynard v. Phila. Cervical Collar Co., 18 F. App’x 814, 

816–17 (Fed. Cir. 2001). In Katz, we explained that the 

defendant’s single sale to the plaintiff, among the thousands of containers it sold in a different State, did not 

subject the defendant to specific jurisdiction. Katz v. 

Ladd Uniform Co., 975 F.2d 869 (Fed. Cir. 1992) (unpublished) (“Katz’s isolated mail-order requests were for 

the supply of three gas containers, with a total sales value 

of $26.85. . . . Ladd’s isolated action did not satisfy the 

‘minimum contacts’ that are necessary to meet the requirements of due process.”). Here, Allen’s isolated offer 

of a free trial to a Kansas resident is insufficient to establish a substantial connection with Kansas to warrant the 

exercise of specific jurisdiction.

Allen’s website together with its contacts with 

NexLearn create only an “attenuated affiliation” with 

Kansas as opposed to a “substantial connection” with the 
16 NEXLEARN, LLC v. ALLEN INTERACTIONS, INC. 

forum State as required for specific jurisdiction. See 

Burger King, 471 U.S. at 475. We thus affirm the district 

court’s dismissal of NexLearn’s patent infringement claim 

for lack of personal jurisdiction.

B. NexLearn’s Breach of Contract Claim

We affirm the district court’s dismissal of NexLearn’s 

remaining claim for breach of contract for lack of subject 

matter jurisdiction. NexLearn’s complaint asserts the 

District of Kansas has original subject matter jurisdiction 

over only its patent infringement claim, resting its breach 

of contract claim on “supplemental jurisdiction pursuant 

to 28 U.S.C. § 1367.” J.A. 36 ¶ 1. While neither party 

disputes that a claim for patent infringement falls within 

the district court’s subject matter jurisdiction pursuant to 

28 U.S.C. §§ 1331, 1338(a), the district court’s dismissal of 

that claim for lack of personal jurisdiction left no remaining claim over which the district court could exercise 

original subject matter jurisdiction. See J.A. 17. A district court cannot exercise supplemental jurisdiction over 

a claim where original subject matter jurisdiction does not 

exist. 28 U.S.C. § 1367(a). Because we affirm the district 

court’s dismissal of NexLearn’s patent infringement claim 

for lack of personal jurisdiction, we affirm the district 

court’s dismissal of NexLearn’s supplemental claim for 

breach of contract. 

CONCLUSION

For the reasons discussed above, we affirm the district

court’s dismissal of NexLearn’s complaint.

AFFIRMED

COSTS

Costs to Allen.