## United States Court of Appeals for the Federal Circuit

2009-1472

BRADFORD COMPANY, Plaintiff-Appellant,

v. CONTEYOR NORTH AMERICA, INC., Defendant, and CONTEYOR MULTIBAG SYSTEMS N.V., Defendant-Appellee.
Gregory F. Ahrens , Wood, Herron & Evans, LLP, of Cincinnati, Ohio, argued for plaintiff-appellant. With him on the brief were Bruce Tittel and John P. Davis

. Robert J. Lenihan, II , Harness, Dickey & Pierce, PLC, of Troy, Michigan, argued for defendant-appellee. With him on the brief were Michael E. Hilton and Allen E. Pittoors. Appealed from: United States District C ourt for the Southern District of Ohio Senior Judge Sandra S. Beckwith

## United States Court of Appeals for the Federal Circuit

2009-1472

BRADFORD COMPANY, Plaintiff-Appellant,

v. CONTEYOR NORTH AMERICA, INC., Defendant, and CONTEYOR MULTIBAG SYSTEMS N.V., Defendant-Appellee. Appeal from the United St ates District Court for the Southern District of Ohio in Case No. 05-CV-00449, Senior Judge Sandra S. Beckwith.

____________________________ DECIDED: April 29, 2010

____________________________ Before LOURIE, CLEVENGER, and RADER Circuit Judges

. LOURIE, Circuit Judge

. Bradford Company (“Bradford ”) appeals from the judgment of the United States District Court for the Southern District of Ohio granting su mmary judgment to ConTeyor North America, Inc. (“ConTeyor NA”) of noni nfringement of certain claims of U.S. Patents 6,230,916 (“the ’916 paten t”) and 6,540,096 (”the ’096 patent”). 1 Bradford also appeals from the court’s grant of summary judgment that the ’096 patent claims were

1 See Bradford Co. v. Afco Mfg. , 628 F. Supp. 2d 756 (S.D. Ohio 2007) (“ Noninfringement Opinion ”); Bradford Co. v. Afco Mfg. , No. 05-449, 2006 WL 3500009 (S.D. Ohio Dec. 5, 2006) (“ Claim Construction Opinion ”).not entitled to an earlier filing date, 2 and the court’s dismissal of the foreign defendant, ConTeyor Multibag Systems N. V. (“ConTeyor NV”), for la ck of personal jurisdiction. 3 For the reasons discussed below, we affirm in part, reverse in part, and remand. BACKGROUND Bradford owns the ’916 patent, the ’096 patent, and U.S. Patent 5,725,119 (“the ’119 patent”). The ’916 patent was issued from a divisi onal applicatio n of Bradford’s original application that i ssued as the ’119 patent. The ’096 patent is a continuation-inpart of the ’916 patent. The patents relate to shipping containers used to ship automobile door panels and relat ed parts. The containers include “dunnage,” which is a collection of pouches that hold parts, and ar e designed such that both the container and the collapsible dunnage structure can be easily re-erected and reused for multiple shipments. The containers are easily retur ned to shippers in a collapsed condition. According to Bradford the ability to reuse containers lowers freight, handling, and storage costs. Bradford se lls the patented containers commercially under the name AdaptaPak. Bradford’s inventors, Donald Bazany and Judson Bradford, filed the application that became the ’096 patent on May 31, 2000. On Februa ry 26, 2001, the examiner rejected all of the claims as being anticip ated by Bradford’s own ’119 patent under 35 U.S.C. § 102(b). Bradford responded by amending the “rela ted applications” section to incorporate by reference the ’119 patent, an d claiming the benefit of the ’119 patent’s

2 See Bradford Co. v. Afco Mfg. , No. 05-449, 2008 WL 974043 (S.D. Ohio Apr. 8, 2008) (“ Priority Opinion ”).

3 See Bradford Co. v. Afco Mfg. , 560 F. Supp. 2d 612 (S.D. Ohio 2008) (“ Personal Jurisdiction Opinion ”).

2009-1472 2filing date. 4 The examiner, however, rejected the claims once again, this time under the doctrine of obviousness-type double patenting. The examiner a sserted that the ’096 patent claims were obvious in light of Br adford’s own ’119 patent in combination with U.S. Patent 4,798,304 (“the R ader patent”). The examiner suggested that the rejection could be overcome by filing a terminal disclaimer for the ’096 patent. Bradford responded by arguing that the refe rences cited by the examin er did not render the ’096 patent claims obvious, specifically that t hey did not teach a container with an opening on the side to allow access to the dunnage st ructure. Following Bradford’s response, the examiner once again rejected the claims as being obvious in light of Bradford’s own ’119 patent in combination with U.S. Pa tent 4,798,304 (“Kupersmit”) . In 2002, after arguing the examiner’s rejections multiple times, Bradford eventually filed a terminal disclaimer, giving up a portion of the ’096 patent term. In 2005, Bradford sued Co nTeyor NV of Belgiu m and its United States subsidiary, ConTeyor NA, in t he United States District Court for the Southern District of Ohio, alleging infringement of all three of its patents. ConTeyor NV has had various business dealings with companies in the United States, including Bradford. The ConTeyor companies together se ll shipping containers that also include collapsible dunnage. All of the asserted claims of the three Bradford patents require that the dunnage be “coupled to” the frame or th e side structure of the cont ainer. Claim 1 of the ’916 patent reads as follows: A reusable and returnable rack container for supporting a product thereon

4 The ’119 patent application was f iled on February 28, 1996 and issued on March 10, 1998.

2009-1472 3during shipment and subsequently being returned generally empty of product for reuse comprising: a frame having a top member, a botto m member and a plurality of legs extending therebetween, the legs conf igured for being movable between an erected position for spacing the top member above the bottom member to support a product placed on the rack and a collapsed position for collapsing and reducing the size of the rack contai ner for return; the legs being hinged along their respective lengths for being folded into the collapsed position; a dunnage structure s upported by the frame for receiving a product placed on the rack for shipment when the legs are in an erected position; the dunnage structure operable for re laxing when the legs are in a collapsed position such t hat the dunnage structure is generally positioned on the reduced size rack structure for return; the dunnage structure movably coupled to the frame and operable for being moved with respect to said erected frame to vary the position of the dunnage structure and the received product within the container; whereby the rack provides reusabl e dunnage which is usable with the container when it is sh ipped and subsequently remains with the container when it is returned for being reused when the container is again shipped. ’916 patent col.17 ll.3 7–63 (emphasis added). Additio nally, the ’096 patent claims an opening on the side of the cont ainer to allow access to t he dunnage. Claim 1 of the ’096 patent reads as follows: A reusable and returnable container for holding product therein during shipment and then being returned for r euse, the container comprising: a body having at least two opposing and moveable side structures, the side structures configured for being se lectively moved into an erected position for shipment and moved into a collapsed position for reducing the size of the cont ainer for return; a dunnage structure s panning between the side structures, the dunnage structure being operably coupled to the side structures for automatically moving, with the side structures, to an erected position for receiving product when the side structures are erected and moving to a collapsed position in the body when the side structures ar e collapsed so that the

2009-1472 4dunnage remains with the container when returned; the dunnage structure having an open end facing at least one side structure of the body, the at least one side structur e defining an open area which is in alignment with the dunnage structure open end for accessing the dunnage structure and transferring product into and out of the dunnage structure from a side of the container; whereby a person may more efficiently and safely remove product from the container and the container and dunnage is readily reused. ’096 patent col.13 ll.26–50 (e mphasis added). In December 2006, the district court c onstrued claims of all three patents at issue. See Claim Construction Opinion , 2006 WL 3500009. In its claim construction, the court found the claim term “coupled to” to mean “linked together, connected or joined.” Id. at *9. The court gave the term “c oupled to,” and related terms, the same meaning across all asserted claims of the thr ee patents. For example, where the claims of the ’096 patent us ed the phrase “operably coupled to the side structures,” the court construed that term “operably coupled” as having the same meaning as the term “coupled to,” which it had previously construed. Id. at *27. In December 2007, the district court granted summary judgment of noninfringement of the ’916 and ’096 patents. Noninfringement Opinion , 628 F. Supp. 2d at 764. The ’916 patent depicts an embodiment of the dunnage structur e coupled to the frame of the container at Figure 1, and in further detail in Figure 1A, both reproduced below:

2009-1472 5Prior to their motion fo r summary judgment of noninfringement, the ConTeyor defendants had moved the district court to grant summary judgment of invalidity for all three Bradford patents. Alt hough in its claim construction order the district court had construed the term “coupled to” uniformly across the three patents to broadly mean “linked together, connected or joined,” Claim Construction Opinion , 2006 WL 3500009,

2009-1472 6at *9, in its subsequent ruling on the ConT eyor defendants’ invalid ity motion, the court had held that the asserted claims were not ant icipated by prior art containers in which the dunnage is coupled to s upport bars or support rails, Bradford Co. v. Afco Mfg. , No. 05-449, 2007 U.S. Dis t. LEXIS 31975 (S.D. Ohio May 1, 2007) (“ Invalidity Opinion ”). In granting ConTeyor summary j udgment of noninfringement, t he court relied upon that earlier decision on invalidity for the meaning of the term “coupled to.” Noninfringement Opinion , 628 F. Supp. 2d at 764. In effect, the court ruled that the term “coupled to” was restricted to a direct coupling. Notably, neither party had prev iously proposed that construction to the court. Each of the asserted claims requires that the dunnage structure be “coupled to” either the “frame,” the “open frame,” or the “side structure” of the container. Id. at 762. Finding that the dunnage structure of the accused ConTeyor product was linked or connected to bars or ra ils and not directly to a “frame,” “open frame,” or “side structure,” the court conclu ded that the accused product did not infringe claims 1, 4, and 5 of the ’916 patent or claims 1, 4, 10, 11, and 19 of the ’096 patent. Id. The dispute and the court’s ruling were solely on the issue of literal infringement. Id . at 758 n.1. Following its noninfringement dec ision, in April 2008, the district court ruled on the priority date of the ’096 patent. See Priority Opinion , 2008 WL 974043. Bradford had argued that the filing dat e of the ’119 patent, February 28, 1996, was also the effective filing date of the ’096 patent. The parties disputed whether there was sufficient disclosure in the ’119 patent of the claimed container’s side- loading ability. Each of the claims of the ’096 patent includes a limitation requiring an open end on the side of the container that allows access to the dunnage structure. Bradf ord had argued to the

2009-1472 7district court that the ’119 patent depicts an embodime nt of the side-load ing container at Figures 4 and 5, one of which is reproduced below:

While the district court agreed that the c ontainer depicted in the ’119 patent could be loaded from the side, it found this disclosure insufficient to teach a side-loading container so as to satisfy section 112, first paragraph. Id. at *8 (citing 35 U.S.C. § 112). Moreover, the court noted, in prosecuting th e ’096 patent, Bradford had specifically told the examiner that the ’119 patent did not teach the side-loadi ng container claimed in the ’096 patent. Id. at *9. Relying mostly on Bradford’s prosecuti on history comments, the court concluded that the ’096 patent was not entit led to the filing date of the ’119 patent. The court therefore granted ConTeyor NA’s motion, which effectively restricted Bradford’s infringement claim to a la ter filing date for the ’096 patent. Id. at *10. Finally, in May 2008, the district court f ound that it could not exercise personal jurisdiction over the fore ign defendant ConTeyor NV. Personal Jurisdiction Opinion , 560 F. Supp. 2d at 612. The co urt also rejected Bradford’s argument that jurisdiction

2009-1472 8over ConTeyor NV existed under either prong of Rule 4(k). Id. at 635. The court found that ConTeyor NV’s connections to Ohio and Michigan were insufficient to allow the court to exercise jurisdiction over t he defendant consistent with due process. Id. The court therefore granted ConTeyor NV’s motion to dismiss. Id. Bradford now appeals. We have jurisdicti on pursuant to 28 U.S.C. § 1295(a)(1). DISCUSSION
A. Priority Date for the ’096 Patent In denying Bradford an earlier priority dat e for the ’096 patent, Bradford argues, the district court improperly relied on a single prosecutio n remark made by Bradford’s attorney to the effect that the ’119 patent did not disclose side-loading containers. Bradford contends that that, however, was an incorrect statement that should not have been made to the examiner. Regardless, Bradford argu es, the argument was never accepted by the examiner and was therea fter abandoned by the attorney prosecuting the ’096 patent. Moreover, Bradf ord points to the examiner’s initial section 102 rejection as evidence of the examiner’s belief that t he ’119 patent disclosed every limitation of the ’096 patent claims including the side-loading feature. Bradford al so contends that the inventor as well as ConTeyor NA’s own ex pert have testified that there is sufficient disclosure of that claim limit ation in the ’1 19 patent. Hence, Bradford argues, it was improper for the court to overlook all of t hat evidence in favor of a single prosecution remark. ConTeyor NA and ConTeyor NV do not respond to Bradf ord’s arguments on this issue. In fact, ConTeyor NA has not ent ered an appearance in this appeal at all. ConTeyor NV has limited its response to the issue of personal jurisdiction.

2009-1472 9We review a grant of summary judgment de novo , drawing all reasonable factual inferences in favor of the non-moving party. See Invitrogen Corp. v. Biocrest Mfg. L.P. , 424 F.3d 1374, 1378 (Fed. Cir. 2005). We apply our own law with respect to issues of substantive patent law and cert ain procedural issues pertaini ng to patent law, but apply the law of the regional circ uits on non-patent issues. Id. Determination of a priority date is purely a question of law if the facts underlying that de termination are undisputed. See E.I. du Pont de Nemours & Co. v. Ma cDermid Printing Solutions, L.L.C. , 525 F.3d 1353, 1359 (Fed. Cir. 2008). Ho wever, determination whet her a priority document contains sufficient disclosure to comply with the written descr iption aspect of 35 U.S.C. § 112, first paragraph , is a question of fact. Waldemar Link v. Osteonics Corp. , 32 F.3d 556, 558 (Fed. Cir. 1994). Although we will affirm the district court’ s decision, we do agree with Bradford, at least to the extent that a gen uine issue of fact exists as to whether the ’119 patent contains a sufficient disclosure of a side- loading container. Al though the court noted that most of the drawings of the ’119 patent depict contai ners that can be loaded only from the top, it also acknowledg ed that “[t]here is no question that, as shown in Figures 4 and 5 [of the ’119 patent], the container can be loaded from the side.” Priority Opinion , 2008 WL 974043, at *9 (emphasis added). The court concluded, however, that even though it would have be en obvious to side load the containers shown in the specification, that di d not mean that a side-loading cont ainer was sufficiently disclosed. See id. (citing Lockwood v. Am. Airlines, Inc. , 107 F.3d 1565, 1572 (Fed. Cir. 1997)).
In Lockwood , we made clear that in order to gain the benefit of the filing date of an earlier application under 35 U.S.C. § 120, each application in the chain leading back

2009-1472 10to the earlier application must comply wit h the written descrip tion requirement of 35 U.S.C. § 112. Lockwood , 107 F.3d at 1571. That, we ex plained, requires that the earlier application descri be the later claimed invention, and do so in sufficient detail that one skilled in the art can clearly conclude that the inventor was “in possession” of the claimed invention as of the filing date sought. Id. at 1572 (citing Vas-Cath Inc. v. Mahurkar , 935 F.2d 1555, 1563– 64 (Fed. Cir. 1991)); see also Ariad Pharms., Inc. v. Eli Lilly & Co. , No. 2008-1248, 2010 WL 1007369, at *12 (Fed. Cir. Mar. 22, 2010) (en banc) (explaining that possession requires that the specification “de scribe an invention understandable to [a] skilled artisan and show t hat the inventor actually invented the invention claimed”). Here, t he district court agreed that t he two figures in the earlier ’119 patent application show dunnage that can be acce ssed from the side, and we believe that that might have sufficed as a sufficient description of the claimed sideloading limitation had the app licant not indicated otherwis e during prosecution. See Cooper Cameron Corp. v. Kv aerner Oilfield Prods., Inc. , 291 F.3d 1317, 1322 (Fed. Cir. 2002) (citing Vas-Cath , 935 F.2d at 1566) (“Drawi ngs constitute an adequate description if they describe w hat is claimed and convey to t hose of skill in the art that the patentee actually invent ed what is claimed.”); see also Eiselstein v. Frank , 52 F.3d 1035, 1038 (Fed. Cir. 1995) (expla ining that “the prior applic ation need not describe the claimed subject matter in ex actly the same terms as us ed in the claims”). However, we also agree with the distri ct court that Bradfor d is estopped from arguing for an earlier priority date for the ’096 patent by the prosecution history of that patent. In one of his earlier re jections, the examiner reject ed the claims as obvious in light of the ’119 patent combined with the Rader patent. The exam iner specifically

2009-1472 11stated that the Rader patent taught a “side wall having [ an] opening.” In response, Bradford told the patent examiner that the ’1 19 patent did not teach the very feature that makes the invention of the ’ 096 patent side loading. Spec ifically, Bradf ord argued that the ’119 patent “clearly does not teach a dunnage structure hav ing an open end which is in alignment with an open area of a side structure to allow access of the dunnage structure for transferring product into and out of the dunnage structure from a side of the container.” Bradford further argued that when combined with the side opening taught by the Rader patent, the ’119 paten t would still not render the ’096 patent claims obvious. Bradford’s arguments were ap parently successful. In t he next office action, the examiner relied on a diffe rent prior art reference, Kupers mit, in rejecting the claims as obvious. The applicants’ statement to the examiner is a compel ling disclaimer of scope such that the ’096 patent is not ent itled to an earlier priority date. See Microsoft Corp. v. Multi-Tech Sys., Inc. , 357 F.3d 1340, 1350 (Fed. Cir. 2004) (“We take the patentee at its word and will not construe the scope of . . . [a] patent’s claims more broadly than the patentee itself clearly envisio ned.”). That is because arguments made to persuade an examiner to allow an applicat ion trump an ambiguous disclosure that otherwise might have sufficed to obtain an earlier priority date. See Standard Oil Co. v. Am. Cyanamid Co. , 774 F.2d 448, 452 (Fed. Cir. 1985) (holding that any argument made to convince the examiner of the patentability of the claimed invention “ limits the interpretation of claims so as to exclude any interpretati on that may have been disc laimed or disavowed during prosecution in order to obtain claim allowance”). We therefore affirm the court’s decision limiting the priority date of t he ’096 patent to its own filing date.

2009-1472 12B. Noninfringement of t he ’096 and ’916 Patents Bradford argues that the di strict court erred in it s construction of the term “coupled to” and related terms by requiring that the dunnage structure of the claimed containers be attached directly to the frame or side structures of the containers. Bradford points out that both the ’916 patent and ’096 patent, by incorporation of the ’119 patent, clearly disclose dunnage attached to a rail, which is attached to a side structure, and that nothing in the specific ation requires dunnage to be directly attached to the container frame. On the contra ry, Bradford argues, gi ven that dependent claim 10 of the ’096 patent recites dunnage indirectly fixed to the frame through a rail, the doctrine of claim differentiation mandates a reading of the term “coupled to” as not limited to directly attached. ConTeyor NA and ConTeyor NV do not respond to Bradford’s arguments on th is issue. We agree with Bradford that the district court err oneously construed the term “coupled to,” and we hold that the term shoul d be construed broadly so as to allow an indirect attachment. We review claim construction de novo on appeal. Cybor Corp. v. FAS Techs., Inc. , 138 F.3d 1448, 1456 (Fed. Cir. 1998) ( en banc ). We begin a claim construction analysis by considering t he language of the claims themselves. See Phillips v. AWH Corp. , 415 F.3d 1303, 1314 (Fed. Cir. 2005) ( en banc ). However, “claims must be read in view of the spec ification, of which they are a part.” Id. at 1315 (quotation marks omitted). “[ A] court should also consi der the patent’s prosecution history, if it is in evidence. . . . Like t he specification, the pros ecution history provides evidence of how the [Patent Office] and th e inventor underst ood the patent.” Id. at 1317 (citations and quotation marks omitted).

2009-1472 13Although it properly ga ve the term “coupled to” a broad construction in its earlier order, the district court appears to have unnecessarily narrowed it in ruling on defendants’ invalidity contentions. Invalidity Opinion , 2007 U.S. Dist. LEXIS 31975, at *25 (holding that a prior art reference t hat showed that the dunnage structure coupled to support bars was different from the ’916 pa tent claims, which required dunnage coupled to the frame of the container). Thereafte r, the court determined that its invalidity decision mandated that the term “coupled to” be re stricted to a direct attachment to the frame or side structure of the container. Noninfringement Opinion , 628 F. Supp. 2d at 762–64 (basing its noninfri ngement finding on the fact that in its invalidity decision, the court had held that the “patents-in-suit do not encompass containers in which the dunnage is coupled to support bar s or support rails”). Given that the accused device uses bars or rails to hold the dunnage struct ure, the court concluded that, under its claim construction, there was no infringem ent of any of the asserted claims. Id. at 764. We agree with Bradford that the doctrine of claim differentiation supports a reading that allows an indirect coupling of the dunnage to the frame of the container. Dependent claim 10 of the ’096 patent recites a dunnage stru cture that is coupled to rails which in turn are coupled to the side structures. In li ght of a dependent claim that clearly states an indirect attachment of the dunnage structure, the scope of independent claim 1 is presumed to be broader to allow fo r other types of indirect attachments. See Comark Commc’ns, Inc. v. Harris Corp. , 156 F.3d 1182, 1186 (F ed. Cir. 1998) (“The doctrine of claim differentiation create[s] a pres umption that each clai m in a patent has a different scope.”). While the doctrine of claim differentia tion, contrary to arguments regularly made in this court, is not a conclusive basis for construing claims, we find

2009-1472 14nothing in the ’096 patent specif ication or the prosecution hist ory that would allow us to overcome its effect here. On the contrary, the ’096 patent s pecification clearly discloses dunnage coupled to the side structure th rough a rail. ’096 patent fig.3; id. at col.9 ll.24– 31; see also ’119 patent figs.1 & 1A. Similarly, the use of words such as “operably” and “movably” in the claims suggests that the dunnage structure is not fused to the frame, but rather attached flexibly allowing for intermediate parts between the frame and the dunnage structure such that the dunnage is operable or movable. In light of such clear disclosure in the patent, the term “coupled to” is entitled to a broader scope than the district court allowed. We therefore revers e the court’s revised claim construction of the term “coupled to.” Because the court based its noninfringement findi ng solely on its revised construction of that term, we remand the question of infringem ent to the district court for a determination using its origi nal and correct claim construction. C. Personal Jurisdiction over ConTeyor NV Bradford argues that the di strict court erred in co ncluding that no personal jurisdiction existed over ConT eyor NV under Rule 4(k)(2). 5 Bradford notes that this court, like other regional circuits , has allowed district courts to exercise jurisdiction over a defendant who has sufficient contacts wit h the United States and who refuses to identify a state where the suit can be brought. See generally Touchcom, Inc. v. Bereskin & Parr , 574 F.3d 1403 (Fed. Cir. 2009). Bradfo rd points out that ConTeyor NV never conceded personal jurisdiction over it in any state. Theref ore, Bradford argues,

5 Bradford does not appeal the district court’s finding that no jurisdiction existed over ConTeyor NV in Ohio under Ru le 4(k)(1), but has indicated it would not oppose a de novo finding of jurisdiction under that section of the rule. See Bradford’s Principal Br. at 53 n.9. We do not choose to make a de novo finding on an issue Bradford has not argued.

2009-1472 15ConTeyor NV should be he ld to its prior refusal to name a forum, thereby allowing this action to proceed in the Ohio court under Rule 4(k)(2). Bradford contends that the exercise of jurisdiction over ConTeyor NV in Ohio comports with due process in light of all of ConTeyor NV’s contac ts with the United States. ConTeyor NV responds that this court had not decided Touchcom at the time the district court ruled on ConTeyor’s motion to di smiss. Therefore, ConTeyor NV argues, it did not have an obligation to identify a forum where it may be subject to personal jurisdiction. Now it concedes that an alternate forum to bring suit against it exists in Michigan. Moreover, even in light of Touchcom , ConTeyor NV argues, jurisdiction over it anywhere else in the United States fails to comport with due process. We agree with Bradford that personal juri sdiction over ConTeyor NV may exist either in Ohio or in Michigan unde r Rule 4(k) based on ConTeyor NV’s acknowledgement in its briefing on appeal that it is s ubject to personal jurisdiction in Michigan. Rule 4(k)(2) provides that: For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if: (A) the defendant is not subject to jurisdic tion in any state’s courts of general jurisdiction; and (B) exercising jurisdiction is consistent with the United States Constitution and laws. Fed. R. Civ. P. 4(k)(2). Thus, for a cour t to exercise persona l jurisdiction over a defendant under that rule, the plaintiff’s cl aim must arise under federal law, the defendant must not be subject to jurisdiction in any state’s courts of general jurisdiction, and exercise of jurisdiction must comport wit h due process. Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind. Com. de Equip. Medico , 563 F.3d 1285, 1293–94 (Fed. Cir. 2009). We conclude that the district court err ed in declining to find jurisdiction over

2009-1472 16ConTeyor NV under Rule 4(k)(2) because it found that Bradfor d had not demonstrated that ConTeyor NV had sufficient contacts with Ohio or Michigan, and that doing so would not comport with the due process requirements of the Constitution and federal law. Personal Jurisdiction Opinion , 560 F. Supp. 2d at 635. Having ana lyzed in detail ConTeyor NV’s contacts with the state of Ohio and conclu ding that ConTeyor NV did not have “continuous and systematic” contac ts with that state to allow personal jurisdiction over it, the court summarily found that that was also the case with ConTeyor’s alleged Michigan contacts. Id. Thus, the court conc luded that Bradford had failed to demonstrate personal jurisdiction in Ohio over ConTey or NV under Rule 4(k)(2). Id. Following the district court’s decision, we addressed in another case when a district court may exercise jurisdiction ov er a foreign defendant under Rule 4(k)(2). Touchcom , 574 F.3d 1403. In Touchcom , we declined to adopt a requirement that in order to establish jurisdiction, a plaintiff mu st prove that a defenda nt was not subject to jurisdiction in any of the fifty states. Id. at 1415. Instead, we adopted the Seventh Circuit’s approach that allows a district court to use Rule 4(k)(2) whenever a foreign defendant contends that he cannot be sued in the forum st ate and refuses to identify any other state where su it is possible. Id. Applying the rule in that case, we concluded that a Canadian law firm that had prosecuted a patent applicat ion at the United States Patent and Trademark Office had sufficient mini mum contacts with t he United States to satisfy due process and allow for personal jurisdiction under Rule 4(k)(2). Id. at 1418. Given that the defendant in t hat case had not conceded jurisd iction in another state, we concluded that the plaintiff had made a prima facie showing that a Virginia court

2009-1472 172009-1472 18 possessed personal jurisdiction over the defendant even though the defendant was not subject to Virginia’s courts of general juri sdiction. Id. The district court in this case similarl y failed to analyze ConTeyor NV’s contacts with the United States as a whole and imposed an improper burden on the plaintiff. Personal Jurisdiction Opinion , 560 F. Supp. 2d at 635 (“Pla intiff has not shown that the exercise of jurisdiction under Rule 4(k)(2 ) is proper.”). Because the court made the same legal error that we subsequently found in Touchcom , we vacate the court’s decision and remand the case to the district c ourt to determine whether it is entitled to use Rule 4(k)(2) to assert jurisdiction ov er ConTeyor NV, whether ConTeyor NV has sufficient contacts with the United States as a whole and, if so, whether the case against ConTeyor NV should proceed in Ohio or Michigan. CONCLUSION We have considered the parties’ remaining arguments and do not find them persuasive. Accordingly, the judgm ent of the distri ct court is AFFIRMED IN PART, REVERSED IN PART, and REMANDED COSTS Costs to Bradford.