[00:00:00] Speaker 05:
Case today is 2016-105, Inray, TC, Heartland.

[00:00:07] Speaker 05:
Mr. Duffy, you're received.

[00:00:14] Speaker 04:
Thank you, Your Honor.

[00:00:15] Speaker 04:
May it please the court.

[00:00:16] Speaker 04:
This case turns on the meaning of six words, except as otherwise provided by law.

[00:00:22] Speaker 04:
This language was added by Congress in 2011 as part of a new subsection A in 1391,

[00:00:29] Speaker 04:
which provides for the applicability of the entire section of 1391.

[00:00:35] Speaker 03:
With this language, the results in this case, with this new language, is that you have any other adequate means to obtain the relief you desire?

[00:00:46] Speaker 04:
No, I do not think we do.

[00:00:48] Speaker 04:
And that is based on the decisions of this court in prior cases that have allowed the use of the mandamus mechanism

[00:00:58] Speaker 03:
in extraordinary circumstances.

[00:01:00] Speaker 03:
Why is this extraordinary?

[00:01:02] Speaker 04:
Because, as this court mentioned in the Ingres EMC case, there's every single venue case, right?

[00:01:10] Speaker 03:
So every single venue case can have a written mandamus.

[00:01:13] Speaker 04:
Most venue cases, I think, turn on a settled construction of a statute and determine the discretion of the district court to, for example, change it.

[00:01:23] Speaker 03:
that this construction is settled by prior authority, then there's no extraordinary question here, right?

[00:01:34] Speaker 04:
If this court thought that there was a settled construction, that would be true.

[00:01:40] Speaker 04:
But I must say, the language that the V.E.

[00:01:42] Speaker 04:
Holdings case relied on has been repealed by Congress.

[00:01:45] Speaker 04:
It specifically was tied to a phrase that then existed in 1391c.

[00:01:51] Speaker 04:
which was for venue purposes in this chapter.

[00:01:58] Speaker 04:
And that language no longer exists in the statute.

[00:02:00] Speaker 05:
But that language was just brought in.

[00:02:02] Speaker 05:
Instead of saying for this chapter, it says for all venue purposes.

[00:02:06] Speaker 05:
So how can that unravel the VE holding?

[00:02:10] Speaker 04:
So there's two points on that.

[00:02:11] Speaker 04:
First of all, the entire section begins with a provision that says applicability of this section.

[00:02:18] Speaker 04:
And that is standard language of exclusion.

[00:02:21] Speaker 04:
in that section.

[00:02:23] Speaker 04:
The second point about 1391C.

[00:02:27] Speaker 05:
It says for all venue purposes.

[00:02:29] Speaker 05:
This is not all of 1391C.

[00:02:33] Speaker 05:
This is only, among other things, the definition of corporate residence.

[00:02:38] Speaker 05:
It's saying residency for all venue purposes, one, two, and three, including the definition of corporate residence.

[00:02:45] Speaker 04:
But the entire section in 1391A is only applicable except as otherwise provided by law.

[00:02:51] Speaker 04:
And our position is that the plain language of the statute means that the whole of the section has to be qualified by that exceptions clause at the very beginning of 1391.

[00:03:02] Speaker 00:
But there's no definition of residence in 1400 B. You can't say except as otherwise provided by law, meaning

[00:03:13] Speaker 00:
as otherwise provided in 1400 B, when 1400 B has no definition of residence.

[00:03:18] Speaker 04:
1400 B has a settled interpretation by this multiple Supreme Court decisions that resides within 1400 B means the place of incorporation.

[00:03:27] Speaker 04:
Wait a minute.

[00:03:27] Speaker 05:
Do you think, except as otherwise provided by law, it applies to common law?

[00:03:34] Speaker 04:
I think it does apply to judge-made law.

[00:03:37] Speaker 04:
First of all, it is an interpretation of a statute.

[00:03:40] Speaker 04:
Except as otherwise provided by law includes the statute.

[00:03:43] Speaker 05:
Well, the statute doesn't contain a definition.

[00:03:45] Speaker 05:
It's only the Supreme Court decision, which does.

[00:03:47] Speaker 05:
Please definitely let me finish.

[00:03:49] Speaker 05:
And so except as otherwise provided by law would be the Supreme Court's decision.

[00:03:54] Speaker 05:
But here's the problem.

[00:03:55] Speaker 05:
When this was enacted in 2011, that wasn't the law.

[00:04:00] Speaker 05:
V.E.

[00:04:00] Speaker 05:
Holden, whether right or wrong, changed the state of the law.

[00:04:05] Speaker 05:
So when Congress enacted, except as otherwise provided by law language, it was not operating under the assumption of the existence of that legal standard you're relying on from pre-VE holdings.

[00:04:18] Speaker 04:
Well, with that, the question then becomes a twofold question.

[00:04:21] Speaker 04:
The first question is whether law encompasses case law.

[00:04:24] Speaker 04:
And the second question is whether VE holdings is the relevant case law and whether it can be a settled decision.

[00:04:31] Speaker 04:
I would direct the courts to attention to a case like Andrews v. Hovey, which is a Supreme Court case from the 19th century, a patent case, which it says, a question regarding the construction of a statute in the United States concerning patents for inventions cannot be regarded as judicially settled when it has not been so settled by the highest judicial authority which can pass upon the question.

[00:04:53] Speaker 04:
And there are two levels of review.

[00:04:54] Speaker 03:
And the court refused certiorari and be holding.

[00:04:57] Speaker 04:
And refusals of certiorari have no precedential weight, because there are hundreds, even up to thousands, of petitions every year that the Supreme Court denies for all sorts of reasons.

[00:05:08] Speaker 03:
But your argument was by the highest court.

[00:05:11] Speaker 03:
And since they refused certiorari, we were the highest.

[00:05:14] Speaker 04:
It has to be settled by the highest court, according to the Supreme Court.

[00:05:18] Speaker 04:
And merely a denial of certiorari is not a settling of a question.

[00:05:22] Speaker 04:
It's merely the denying of a discretionary writ.

[00:05:25] Speaker 04:
And there are two levels.

[00:05:26] Speaker 04:
Obviously, the court could have onlonged VEE holdings, and it could have also gone to the Supreme Court.

[00:05:33] Speaker 04:
There was also a limitation.

[00:05:35] Speaker 05:
So just to be clear, except as otherwise provided by law, applies to, in your view, this is what you have to get in order to prevail, at least in front of the panel, applies to case law, and only applies to case law of the Supreme Court.

[00:05:53] Speaker 05:
But the problem is, in V.E.

[00:05:55] Speaker 05:
Holding, we came along and said the change in the statute from four code to V.E.

[00:06:00] Speaker 05:
Holding changed the interpretation that ought to be given and the outcome.

[00:06:06] Speaker 05:
And the Supreme Court's never spoken on that.

[00:06:08] Speaker 05:
So where is the Supreme Court case that is the except is otherwise provided by law thing for you?

[00:06:15] Speaker 04:
Well, first let me say that the Supreme Court is getting quite attenuated for me, Mr. Duffy.

[00:06:22] Speaker 04:
I don't think it's that attenuated because the Congress repealed the specific language that V.E.

[00:06:27] Speaker 04:
Holdings relied upon.

[00:06:30] Speaker 04:
They broadened it.

[00:06:32] Speaker 04:
They didn't narrow it.

[00:06:33] Speaker 05:
They said they repealed it.

[00:06:35] Speaker 05:
It just feels like it's a misrepresentation, nothing personal.

[00:06:39] Speaker 05:
I don't mean that to sound as harsh as it came out because they took away for purposes of this chapter and replaced it with for all purposes.

[00:06:46] Speaker 05:
So it's hard to say that that was a repeal in the form of

[00:06:50] Speaker 05:
a purposeful, intentional conveyance of narrowing.

[00:06:54] Speaker 03:
Well, as the Magistrate said, if anything, the 2011 amendments to this portion of Section 1391C serve to further broaden the applicability of the statute.

[00:07:08] Speaker 04:
Prior to 1988 and prior to V.E.

[00:07:10] Speaker 04:
Holdings, the language in the statute was for venue purposes, which was general and applied outside the chapter.

[00:07:16] Speaker 04:
That was the language that the Supreme Court and Four Co.

[00:07:19] Speaker 04:
said

[00:07:20] Speaker 04:
despite its generality, despite its applying to the entire United States code.

[00:07:24] Speaker 04:
It didn't have the word all in there, but it was not limited to this chapter.

[00:07:28] Speaker 04:
The Supreme Court said in that case that the general would not control the specific in that case.

[00:07:34] Speaker 04:
And the whole reasoning of V.H.

[00:07:36] Speaker 04:
Holdings was the narrowness of the language that they targeted this chapter and that the change in language for venue purposes

[00:07:44] Speaker 04:
to for purposes of venue in this chapter, which I must say is we do have and we want to preserve that the holdings might have been wrongly decided.

[00:07:53] Speaker 04:
But we understand that that's not for this panel.

[00:07:55] Speaker 04:
But that language was specifically repealed.

[00:07:57] Speaker 04:
And it's the generality of the language that returns things to the status quo ante.

[00:08:02] Speaker 00:
But now we've gone one step further.

[00:08:04] Speaker 00:
And Congress now said not just for venue purposes, for all venue.

[00:08:09] Speaker 04:
So clearly all does not mean, and my colleagues on the other side concede on page 11 of their brief, that if there's a definition elsewhere in the United States code, then the specific controls over the general.

[00:08:23] Speaker 04:
There's also 1391D.

[00:08:24] Speaker 04:
1391D provides a different definition where there are multiple districts in a state.

[00:08:31] Speaker 04:
And those two definitions, you can read them, and they're not exceptions.

[00:08:35] Speaker 04:
There's no language of exception in 1391D.

[00:08:37] Speaker 04:
But district courts, and in fact, I happen to have a district court opinion here from the Northern District of Illinois I just decided a few months ago called Marshall versus Alpha and Omega Transit, the district court here says, well, of course, 1391D controls over 1391C.

[00:08:55] Speaker 04:
And if you don't take that exception, if you don't have that implicit exception that all doesn't mean all, that it's subject to implied to the traditional rule that a specific controls over the general, then 1391D has no meaning.

[00:09:08] Speaker 04:
And that's very similar to the situation we have here with 1400B, because 1400B has almost no meaning.

[00:09:15] Speaker 04:
And indeed, V.E.

[00:09:16] Speaker 04:
Holdings even said it was a little strange.

[00:09:19] Speaker 04:
V.E.

[00:09:19] Speaker 04:
Holdings said that the entirety of 1400B really doesn't have any effect, or at least the second clause in 1400B has no effect for patent defendants who are corporations.

[00:09:31] Speaker 05:
I'm just going to ask you to slow down a little bit.

[00:09:33] Speaker 05:
You're talking faster than I can listen.

[00:09:35] Speaker 05:
And I want to go back to what you said, because I didn't understand it.

[00:09:38] Speaker 05:
1391D.

[00:09:40] Speaker 05:
What is it you'd like me to take from 1391D?

[00:09:42] Speaker 04:
1391D must qualify 1391C2, because C2 says that a defendant is a resident under this, for all venue purposes, apparently, if the court has personal jurisdiction over the defendant.

[00:10:04] Speaker 04:
D says that in a state with more than one judicial district, there's a different analysis that turns on the minimum contacts to that district.

[00:10:13] Speaker 05:
Where does it say that?

[00:10:14] Speaker 04:
In D, 1391.

[00:10:15] Speaker 05:
Why don't you read me the portion that you think?

[00:10:18] Speaker 04:
Yes, OK.

[00:10:19] Speaker 04:
In 1391, D, it says, for purposes of venue under this chapter,

[00:10:26] Speaker 04:
in a state which has more than one judicial district and in which a defendant that is a corporation is subject to the personal jurisdiction at the time the action is commenced.

[00:10:34] Speaker 04:
So that means that that would be under C, it would be resident of that state.

[00:10:38] Speaker 04:
Such a corporation shall be deemed to reside in any district in that state within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate state.

[00:10:49] Speaker 04:
So now if you apply that definition, a corporation that is, for example, has all kinds of contacts with the southern district of New York, but has no contacts with the western district of New York, that corporation would not be subject to venue in the western district of New York.

[00:11:07] Speaker 04:
Even though if you applied the definition in 1391 C2, it would be subject to jurisdiction in the western district of New York because the test under C2 is only

[00:11:18] Speaker 04:
if a defendant in any judicial district in which such a defendant is subject to the court's personal jurisdiction.

[00:11:23] Speaker 04:
There still would be personal jurisdiction over such a defendant, because the personal jurisdiction would be determined by federal rule of civil procedure 4K1.

[00:11:33] Speaker 04:
And that would be the state, New York state's long arm statute.

[00:11:35] Speaker 04:
And obviously, a New York statute can reach the southern district of New York.

[00:11:40] Speaker 04:
The state long arm statute doesn't make any distinction.

[00:11:43] Speaker 05:
I know you're trying hard, and don't worry, I'm going to restore your rebuttal time.

[00:11:46] Speaker 05:
But I guess I'm still not following whatever argument it is you want me to take away from D. So if it's important, you better try and say it again.

[00:11:53] Speaker 05:
OK.

[00:11:53] Speaker 05:
Because the only thing I understand about D is that D just tries to explain what you do when you have more than one judicial district in a state and how you should choose in which judicial district there is corporate residence.

[00:12:05] Speaker 05:
And that's all I understand D to be.

[00:12:07] Speaker 05:
It is just a narrowing, kind of, of C2 or a

[00:12:12] Speaker 05:
distinction in jurisdictions where states have more than one judicial district and therefore it slightly alters the analysis.

[00:12:21] Speaker 04:
It does.

[00:12:22] Speaker 05:
No one else you want me to take from it.

[00:12:24] Speaker 04:
I would like you to take from it that it literally read C2 would establish jurisdiction in districts that D says there's no, pardon me, would establish venue in districts where D says there's no venue.

[00:12:38] Speaker 05:
But why is that a problem?

[00:12:39] Speaker 05:
You have C2 being slightly more general, and then D says we're going to get more specific in areas where there's more than one district.

[00:12:46] Speaker 04:
I agree.

[00:12:47] Speaker 04:
I agree.

[00:12:48] Speaker 04:
The specific controls the general.

[00:12:50] Speaker 04:
And that is exactly what I think the same principle should apply to 1400B.

[00:12:53] Speaker 05:
But there is no definition.

[00:12:54] Speaker 05:
If there were a definition of corporate residence in 1391, we wouldn't be here.

[00:12:57] Speaker 05:
This wouldn't be a problem.

[00:12:59] Speaker 04:
So I do think that that goes to the question of whether case law is law.

[00:13:05] Speaker 04:
And on that point, I think it's relatively clear that the Supreme Court has said over and over again the case law should be considered law for purposes of statutory interpretation.

[00:13:21] Speaker 04:
That is a point that has been made over and over again.

[00:13:23] Speaker 04:
So for example, a good quote is from Ninth.

[00:13:28] Speaker 05:
OK, let's just set that aside for a second.

[00:13:32] Speaker 05:
So there have been, by my count, I think, five bills introduced in the last decade in Congress.

[00:13:42] Speaker 05:
And by bill, I mean a Senate and a House version I'm treating as two bills, because technically, if they're not passed, they are two bills.

[00:13:49] Speaker 05:
So I'm treating these as two bills.

[00:13:50] Speaker 05:
So a total of five, as best as I can tell, that have been introduced in the last decade in Congress

[00:13:57] Speaker 05:
that were earmarked to correct what you think is wrong with the current state of venue post-VE holding.

[00:14:07] Speaker 05:
So why isn't the fact that Congress keeps introducing these bills?

[00:14:11] Speaker 05:
And in each instance, I have no doubt in my mind what you think of legislative history, but in each instance, nonetheless, these bills are generally accompanied by a report from the committee.

[00:14:24] Speaker 05:
And in each of these reports, it expressly talks about VE holding and the need for including the two most recent bills, which no doubt you're aware of, the House and the Senate bills in 2015, and the need for Congress to amend 1391C in particular.

[00:14:39] Speaker 05:
So why isn't that pretty strong evidence that even Congress doesn't believe the argument that you're making in front of us today?

[00:14:47] Speaker 04:
So I think, first of all, obviously, this is post-enactment legislative history, to the extent you're talking about bills that are after 2011.

[00:14:55] Speaker 05:
No, because there's 2007 bills.

[00:14:58] Speaker 04:
Well, those are actually even worse, because you could say that, well, at the time, the statute existed not in the way that it exists today.

[00:15:06] Speaker 04:
V.E.

[00:15:07] Speaker 04:
Holdings, then, would still be the interpretation of this court of the statute that exists.

[00:15:12] Speaker 04:
But that statute no longer exists.

[00:15:14] Speaker 05:
OK, well, but there's both.

[00:15:16] Speaker 05:
I mean, I think it's even worse.

[00:15:17] Speaker 05:
There are 2007 bills, and there's 2015 bills.

[00:15:20] Speaker 05:
So your book ended.

[00:15:21] Speaker 05:
So I mean, the argument has to break down on one end.

[00:15:23] Speaker 05:
You can't have both ends.

[00:15:25] Speaker 05:
Mr. Duffy, you cannot have both ends of the spectrum.

[00:15:26] Speaker 05:
You've got to choose a side.

[00:15:28] Speaker 04:
Well, I think that with legislative history, the Supreme Court in recent cases has said very clearly, in cases like Alexander versus Sandoval, that congressional inaction is to be given very little weight in the interpretive process.

[00:15:42] Speaker 04:
So with respect to the post-2011 statutes

[00:15:46] Speaker 04:
I would say you give them very little weight in the interpretive process.

[00:15:50] Speaker 04:
I'd also say that this is not uncommon for this court and the Supreme Court to have issues before it that are also pending on Capitol Hill.

[00:15:57] Speaker 04:
That happened with the injunctions in eBay versus Merck Exchange.

[00:16:00] Speaker 04:
The respondents brief in eBay versus Merck Exchange talked about bills that were pending then on Capitol Hill.

[00:16:05] Speaker 05:
Yes, but the difference is you're asking us to conclude that in 2011 when they enacted the language, except as otherwise provided by law, that they were clearly contemplating

[00:16:16] Speaker 05:
this exact scenario.

[00:16:17] Speaker 05:
And all this legislative history suggests that's not the case because they keep contemplating changes directly to 1391C.

[00:16:25] Speaker 05:
So it would seem strange if they think they fixed it all in 1400 that nowhere in all of this would they have acknowledged that.

[00:16:31] Speaker 05:
And instead, everybody would be talking about this screwed up VE holding decision.

[00:16:36] Speaker 05:
I mean, gosh, read the 2015 report.

[00:16:40] Speaker 05:
It's pretty castigating of the VE holding decision.

[00:16:44] Speaker 05:
which is kind of surprising to me.

[00:16:46] Speaker 05:
It's kind of like you make a mess in your bedroom and blame it on your sibling.

[00:16:50] Speaker 05:
And so anyway, I think I'll end with that.

[00:16:55] Speaker 05:
Do you have anything further you'd like to add?

[00:16:57] Speaker 04:
I will just say, and I see my red light is on.

[00:17:02] Speaker 04:
I will just say that my best case on this is actually VE holdings.

[00:17:05] Speaker 04:
Because VE Holdings itself said that there needed to be no legislative history and no legislative intent and no clear legislative intent or any reports or any indication that the Congress intended to change at least four Supreme Court holdings as to the meaning of 1400 V. So that, I think, is one of the strongest cases of the plain-meaning approach.

[00:17:24] Speaker 00:
Thank you very much.

[00:17:25] Speaker 00:
Before you sit down, I have one question.

[00:17:27] Speaker 00:
In your reply brief, I think you've

[00:17:30] Speaker 00:
carried your argument to its logical conclusion.

[00:17:33] Speaker 00:
And you said, where a statute such as 1400B has been interpreted as being, quote, the sole and exclusive provision controlling venue, close quote, in a particular class of actions, quoting Forco, then the entirety of 1391 is inapplicable.

[00:17:52] Speaker 00:
Now, where does that leave patent infringement with respect to the venue for foreign defendants?

[00:17:59] Speaker 00:
covered in 1391C3, I think it is.

[00:18:04] Speaker 04:
That's right.

[00:18:04] Speaker 04:
It's 3C now.

[00:18:06] Speaker 04:
Well, obviously, the Supreme Court decided that in the Brunette case.

[00:18:09] Speaker 04:
And it specifically held that Brunette and the foreign defendants were different.

[00:18:14] Speaker 04:
So I would say that in that case, we would apply that.

[00:18:18] Speaker 04:
So maybe if there is an overstatement, I apologize for it.

[00:18:22] Speaker 04:
But I think that the Supreme Court has spoken quite clearly with other

[00:18:26] Speaker 04:
with respect to domestic corporations.

[00:18:31] Speaker 02:
Thank you.

[00:18:31] Speaker 02:
I'm not sure I understand that, nor do I endorse it.

[00:18:54] Speaker 01:
Good afternoon, Your Honors.

[00:18:55] Speaker 01:
May it please the Court John Lucan for the respondent.

[00:18:58] Speaker 01:
And from this side of the podium, this branch of government does not seem particularly small and weak, but I would charge forward anyway.

[00:19:06] Speaker 01:
Your Honors, I'd like to start with where this dispute belongs and sort of echo back on a couple of comments that each of you were making.

[00:19:16] Speaker 01:
If one reads the policy reasons that echo throughout not only the amicus briefs, but the petitioners brief as well,

[00:19:24] Speaker 01:
This is a dispute about policy, and it's a dispute about the Eastern District of Texas.

[00:19:29] Speaker 01:
And it's coming out of a case that is in the District of Delaware, which is my client's state of incorporation.

[00:19:35] Speaker 01:
So starting with, is this even remotely appropriate for mandamus?

[00:19:40] Speaker 01:
The answer is no.

[00:19:42] Speaker 01:
If those policy reasons and the abuses or whatever the amicus or other commentators feel is going on in the Eastern District of Texas is enough to lead this court

[00:19:53] Speaker 01:
to reconsider its clearly settled precedent, as opposed to letting Congress deal with the situation from a policy point of view, it ought to at least come up in a case in which someone in the Eastern District of Texas is actually being put out by whatever is going on down there.

[00:20:11] Speaker 01:
In fact, in this case, throughout the petition, you want someone who has sued your client.

[00:20:17] Speaker 01:
It would be, well.

[00:20:19] Speaker 01:
Preferably, I guess, from a personal point of view.

[00:20:21] Speaker 01:
But no, Your Honor.

[00:20:22] Speaker 01:
I mean, if one will read the petition or the amicus briefs in vain to try to find any injury or any reason that the petitioner's been irreparably harmed.

[00:20:38] Speaker 01:
In fact, it's ironic enough.

[00:20:40] Speaker 01:
This is a weird case in that.

[00:20:42] Speaker 01:
This case is not over.

[00:20:44] Speaker 01:
No.

[00:20:44] Speaker 01:
But it could have been stayed.

[00:20:46] Speaker 01:
All three of the asserted patents are the subject.

[00:20:49] Speaker 01:
of IPRs that are now ongoing in the PTAB.

[00:20:53] Speaker 01:
And in a weird turn of events, we, the plaintiff, are the ones who suggested to the court below that this case be stayed pending the patent PTO taking action on those.

[00:21:04] Speaker 01:
And the petitioner, who apparently in front of this court is convinced that it's suffering irreparable harm by litigating in Delaware, opposed and said full speed ahead.

[00:21:15] Speaker 01:
So earlier this week,

[00:21:17] Speaker 01:
the district court judge issued a Markman ruling that frankly, if anybody's being irreparably harmed by being in Delaware in this case, in this forum, it certainly could have saved the district court a lot of effort in litigating the case.

[00:21:31] Speaker 01:
So I think any suggestion that there's any kind of irreparable harm to the petitioner here is completely without merit.

[00:21:40] Speaker 01:
And secondly, to the extent that what's going on in Texas or anywhere else

[00:21:45] Speaker 01:
But Texas is obviously the thrust of the amicus briefs, and a lot of the rhetoric, and I think accounts for the ample attendance this afternoon.

[00:21:54] Speaker 01:
There ought to at least be facts before the court that establish something going on there has affected somebody in the case.

[00:22:00] Speaker 01:
And the normal considerations, both jurisdiction and venue, about the plaintiff's choice and the interest of the host forum, we are not like,

[00:22:11] Speaker 01:
many of the decried plaintiffs going to other venues, because we are in our state of incorporation, which gives Delaware a much greater interest over this case than in all the other hypothetical cases that might have come before this court.

[00:22:31] Speaker 01:
Your Honor, as you pointed out, Congress has been looking at this throughout this entire time period.

[00:22:36] Speaker 01:
I mean, to the extent

[00:22:38] Speaker 01:
And I'm inclined to agree that when someone in the congressional record, or I think you were talking about Representative Goodwin, with the manager's amendment in June of last year decries that B.E.

[00:22:50] Speaker 01:
Holdings was wrong.

[00:22:51] Speaker 05:
Did you say B.E.

[00:22:51] Speaker 05:
Moore?

[00:22:52] Speaker 01:
I gave the decision to you, Judge.

[00:22:54] Speaker 01:
It must have been the suggestion that B.E.

[00:23:02] Speaker 01:
Holdings was wrong, I think, is

[00:23:06] Speaker 01:
actually an indication that V.E.

[00:23:08] Speaker 01:
Holdings did exactly what the language that Congress adopted in 1988 compelled.

[00:23:12] Speaker 01:
And the current Congress, looking back on it, thinks that maybe some changes might be made because they didn't really anticipate what came.

[00:23:20] Speaker 01:
And Congress has been aware.

[00:23:21] Speaker 05:
From a policy standpoint, let me just ask you, is consolidation, because certainly it's true in Delaware as well, but certainly not to the extent that it's true in ED Texas,

[00:23:35] Speaker 05:
But is consolidation in a narrower number of districts for sure a bad thing?

[00:23:44] Speaker 01:
From a policy perspective?

[00:23:45] Speaker 01:
I think from a policy perspective, the answer is not necessarily.

[00:23:48] Speaker 05:
Hasn't, in fact, Congress considered an enormous number of different measures and held hearings on the need for specialized trial courts in patent cases?

[00:23:58] Speaker 05:
And in each of these cases, it was always judged by

[00:24:01] Speaker 05:
In terms of specialization, it wasn't putting district court judges up with technical backgrounds, but rather just consolidating a large number of cases to give individual judges greater exposure to patent cases.

[00:24:12] Speaker 05:
And hasn't that de facto been what this venue statute ended up creating?

[00:24:17] Speaker 05:
I mean, look, Darrell Issa should be thrilled, right?

[00:24:20] Speaker 05:
He wants patent-specific trial courts.

[00:24:24] Speaker 05:
Well, we got one.

[00:24:26] Speaker 01:
I would agree with that, and particularly in the context of this case, Your Honor.

[00:24:29] Speaker 01:
When one reads the amicus briefs and hears all of the horrible intentions attributed to plaintiffs for going to Texas, Delaware is an excellent example of some, I don't know, you want to call it scale economies or whatever in the bench.

[00:24:43] Speaker 01:
That is a deep bench in patent law.

[00:24:46] Speaker 01:
And I don't think it's unfair to the district court judges elsewhere in the country to say that for a court that does not get a lot of patent cases, a patent case is an incredible

[00:24:56] Speaker 01:
both in the amount of time that one has to put in on it, just because it's bulk.

[00:24:59] Speaker 01:
Frankly, the tendency of patent litigators to fight over every single issue instead of cooperating.

[00:25:06] Speaker 01:
But also just the body of law is so substantial that the burden on the court and the court's clerks to be able to keep up with the issues is tremendous.

[00:25:15] Speaker 01:
And I think that there are some advantages in courts like Delaware having a critical mass, if you will, of patent cases.

[00:25:23] Speaker 05:
The other thing, Your Honor... And they have specialized law clerks.

[00:25:26] Speaker 05:
Many of those judges I know hire technically trained individuals to be their law clerks because of the heavy patent docket that they hold.

[00:25:33] Speaker 05:
That's exactly true.

[00:25:34] Speaker 05:
So I'm not saying this is right or this is wrong, that either of these systems are the one that I think we ought to adopt.

[00:25:42] Speaker 05:
But boy, doesn't this feel like something the legislature should do rather than something we should be asked to do.

[00:25:47] Speaker 01:
Exactly.

[00:25:48] Speaker 01:
And to build on that, Your Honor, the other point is that the legislature has so many different options available.

[00:25:53] Speaker 01:
And if one traces throughout the time period before the 2011 Act and since then and looks at the variety of options,

[00:26:01] Speaker 01:
They stray from staying still somewhat broad to getting incredibly narrow to carving out special categories for certain kinds of plaintiffs.

[00:26:13] Speaker 01:
So it might be a more restrictive, defendant-centric system.

[00:26:17] Speaker 01:
But universities, small inventors, the provisions that say would allow for them in the plaintiff's home,

[00:26:27] Speaker 01:
That's where the invention was made or that's where the plant that actually makes the product that embodies the invention is made.

[00:26:35] Speaker 01:
The ways of dealing with the problems tempered by the fact that some of the problems are not problems, they are benefits that is available to Congress is far bigger.

[00:26:48] Speaker 01:
So my starting point, which has taken up a fair amount of my time, is simply that

[00:26:54] Speaker 01:
This has best left the Congress.

[00:26:56] Speaker 01:
And even if this court were inclined to wait in on this situation via mandamus, it should wait for a case where someone has actually suffered some injury that you could factor into the decision, as opposed to someone who, over our objection or our request, is still litigating in Delaware when Delaware could have been stopped, at least pending what the PTO was going to consider.

[00:27:21] Speaker 01:
As to the merits, Your Honor, as to the structure of the 2011 statute and what Congress was saying, there are a couple of points that I wanted to make and then answer any questions the court has.

[00:27:35] Speaker 01:
But the legislative history, both in the House report and in the ALI 2004 report, and the ALI pretty much wrote most of what showed up in the statute seven years later.

[00:27:46] Speaker 01:
That 2004 report, which is cited at page 8 of the petition,

[00:27:51] Speaker 01:
is virtually as authoritative as the legislative history, because it basically sets out what was adopted years later after much consideration.

[00:28:02] Speaker 01:
The legislative history in the House report for the introductory clause to 1391A that petitioner relies upon about other law states

[00:28:19] Speaker 01:
that new 1390A1 follows current law, as in under the VE regimen, not pre-VE.

[00:28:29] Speaker 01:
And it would not, quote, displace the special venue rules that govern under a particular federal statute.

[00:28:35] Speaker 01:
And then it cites the ALI study, recognizing that there's over 200 specialized statutes.

[00:28:40] Speaker 01:
In fact, the ALI would like to get rid of many of them.

[00:28:45] Speaker 01:
Congress in adopting C, particularly with the for all venue purposes, is not displacing any of those 200 plus special venue statutes.

[00:28:57] Speaker 01:
It is providing a definition to replace a definition that was previously there.

[00:29:02] Speaker 05:
Now, what about Mr. Duffy's argument, though, that accept as otherwise provided by law includes Supreme Court case law?

[00:29:09] Speaker 01:
The Supreme Court did not write, and the Supreme Court's intent

[00:29:14] Speaker 01:
as to what the definition of reside is.

[00:29:16] Speaker 01:
The Supreme Court interpreted what Congress in 1948 meant by reside.

[00:29:22] Speaker 01:
And when it did that in Forco, it basically said that in 48, they used reside as a synonym for inhabit.

[00:29:31] Speaker 01:
So they went back to the original Judiciary Act.

[00:29:35] Speaker 01:
And we're looking at what Congress did in 1787, I think.

[00:29:43] Speaker 01:
the Supreme Court determining anything, it was the Supreme Court interpreting what an earlier Congress meant.

[00:29:49] Speaker 01:
And there is absolutely nothing cited in the petition or anywhere else that suggests that a Congress in 1988 or 2011 is not allowed to substitute its judgment for what a word should mean.

[00:30:02] Speaker 01:
The word reside is in 1400 B, and it has not been displaced.

[00:30:07] Speaker 01:
We contend venue is proper here under 1400 B.

[00:30:11] Speaker 01:
not under the general venue statute that's now in 1391B, it's under 1400B.

[00:30:15] Speaker 01:
But as of 2011, what reside means in 1400B is what the 2011 Congress said, substituting its judgment.

[00:30:26] Speaker 01:
So it's almost like a claim construction.

[00:30:29] Speaker 01:
The claim stays the same.

[00:30:30] Speaker 01:
The claim is what's at issue.

[00:30:33] Speaker 01:
But Congress in 2011 is allowed to become

[00:30:37] Speaker 01:
its own lexicographer, if you will, it's allowed to replace what in 1948 or... I'm not positive I understand exactly your argument.

[00:30:48] Speaker 05:
So let me give you a hypothetical, because maybe this will help me understand.

[00:30:52] Speaker 05:
Because Mr. Duffy says, and I don't think he's wrong about this, that accept as otherwise provided by law could possibly indicate clear Supreme Court law on a point.

[00:31:05] Speaker 05:
So forget V.E.

[00:31:06] Speaker 05:
holding, okay?

[00:31:07] Speaker 05:
Let's suppose the only law on point is something like Fourco.

[00:31:11] Speaker 05:
And what Fourco says, this is my hypothetical world, don't dispute the facts with me.

[00:31:16] Speaker 05:
What Fourco says is the word resides in 1400, which has not changed in all this time.

[00:31:21] Speaker 05:
Not 1400 in the use of the word resides.

[00:31:23] Speaker 05:
Resides in 1400, a patent special venue statute means state of incorporation or principal place of business only full stop.

[00:31:34] Speaker 05:
And Forco is the only law of record, OK?

[00:31:38] Speaker 05:
And now suppose you were actually up here trying to tell us to look at the statute and figure out what except is otherwise provided by lawmen, and you're trying to tell us that this actually means that the 1391C definition of residence has displaced that Supreme Court precedent.

[00:31:58] Speaker 05:
Is that what you would tell me, or would you hope we ask in Mr. Duffy's point that

[00:32:02] Speaker 05:
that the acceptance otherwise provided by law could indicate a consistent long-term Supreme Court position on a point?

[00:32:09] Speaker 01:
The acceptance otherwise provided by law, even in that hypothetical, would still not lock the 2011 Congress, assuming hypothetically there was no 1988 Congress and no VE holding, would not prevent the 2011 Congress from

[00:32:25] Speaker 01:
not displacing the statute.

[00:32:26] Speaker 01:
They haven't revoked it.

[00:32:27] Speaker 01:
They haven't displaced it.

[00:32:29] Speaker 01:
It is still the patent statute.

[00:32:30] Speaker 01:
But they have changed the meaning of it by changing the definition of reside.

[00:32:35] Speaker 01:
And they have simply selected the vehicle of doing that in 1991 instead of in 1400B.

[00:32:44] Speaker 01:
And the legislative history is abundantly clear why they did it there, because there's 200 other statutes that are out there, many of which use the word reside.

[00:32:53] Speaker 01:
I mean, the ALI is saying get rid of those.

[00:32:55] Speaker 01:
Congress, I don't think it's lazy.

[00:32:58] Speaker 01:
I think it's efficient for Congress to say, we will change them all at once.

[00:33:02] Speaker 01:
Rooting them out individually would be very difficult.

[00:33:05] Speaker 01:
And that legislative process might be quite difficult, because everyone has a constituency.

[00:33:10] Speaker 02:
Well, they were also concerned about missing something.

[00:33:12] Speaker 01:
Yes, yes, especially when many of the venue statutes use the word jurisdiction.

[00:33:16] Speaker 01:
So at times, it can be very confusing as to whether it's even a venue statute or not.

[00:33:20] Speaker 01:
But all that's happening is that Congress in 2011 is saying, I am not displacing that statute.

[00:33:27] Speaker 01:
I am changing the definition.

[00:33:29] Speaker 01:
And Congress is allowed to change the definition.

[00:33:32] Speaker 01:
And there's nothing about otherwise provided by law that keeps Congress from changing the definition.

[00:33:38] Speaker 05:
So wait, are you saying that if there were in the patent venue statute an express and specific definition of residence that differed from 1391C, that 1391C should nonetheless be read as having overwritten it?

[00:33:54] Speaker 01:
No, I think that would be as otherwise provided by law.

[00:33:57] Speaker 01:
What we're talking about are statutes where Congress, when it adopted them, simply said reside and did not explain in statutory language what it meant.

[00:34:07] Speaker 01:
In those situations, and I submit it's not just the Supreme Court, a court enforcing that statute has to figure out what Congress meant by reside, not what reside ought to mean.

[00:34:18] Speaker 01:
That's what the Supreme Court did in Forco.

[00:34:20] Speaker 01:
It said, what did the 1948 Congress mean?

[00:34:24] Speaker 01:
The 2000 amendments, even if there was no VE holding in between, is simply Congress in 2011 saying,

[00:34:30] Speaker 01:
I can leave 1400B in force, along with all the other ones.

[00:34:35] Speaker 01:
But I, as Congress, can change the definition of what reside means.

[00:34:38] Speaker 01:
And that's exactly what they did.

[00:34:40] Speaker 01:
Thank you, Your Honor.

[00:34:40] Speaker 05:
Thank you.

[00:34:41] Speaker 05:
Mr. Duffy, we'll restore your rebuttal time.

[00:34:46] Speaker 04:
Thank you, Your Honor.

[00:34:48] Speaker 04:
I just have four points that I would like to make.

[00:34:50] Speaker 04:
The first is this issue about whether law includes decisional law of the Supreme Court interpreting a statute

[00:34:56] Speaker 04:
I'd first like to say that the Supreme Court in Warren versus the United States, that's 340 US 523, has said that the term law in our jurisprudence usually includes the rules of court decisions as well as legislative acts.

[00:35:08] Speaker 04:
It cites actually Erie Railroad versus Tompkins for that proposition, which is interpreting the Rules of Decision Act, another statute in Title 28.

[00:35:15] Speaker 04:
Also, Illinois versus Milwaukee, which is a 1972 decision of the Supreme Court, interprets the word law in 1331 to also include decisional law.

[00:35:26] Speaker 04:
So there are many cases that follow that.

[00:35:29] Speaker 04:
What's the site?

[00:35:30] Speaker 04:
The site for that, Illinois versus Milwaukee, is 406 US 91.

[00:35:35] Speaker 04:
It's a 1972 decision of the Supreme Court construing laws following this general canon of statutory construction, which is articulated in the Warren case, that says, yes, law usually includes decisional law as well as statutes.

[00:35:47] Speaker 04:
So I think that's the first point that I wanted to cover that was, I think, part of the colloquy here.

[00:35:53] Speaker 04:
The second point I wanted to make is that V.E.

[00:35:57] Speaker 04:
Holdings, one of the arguments that just was not made in V.E.

[00:36:00] Speaker 04:
Holdings was the relationship between 1400 B and 1694.

[00:36:04] Speaker 04:
Originally, those two sections were part of the same statute, and they got split in the codification of the judicial code in 1948.

[00:36:13] Speaker 04:
1948 was a significant date, as my colleagues on the other side said, but it was only because that's when Title 28 was enacted into positive law.

[00:36:22] Speaker 04:
That usually does not have any substantive effect.

[00:36:24] Speaker 04:
They were originally part of the same sentence.

[00:36:26] Speaker 04:
You can see that by reading the Stonite case.

[00:36:29] Speaker 04:
And the court in Stonite, because they were part of the same statute, they should be interpreted in pare materia.

[00:36:35] Speaker 04:
1694 uses the word residence.

[00:36:39] Speaker 04:
And there's never been an argument that that has been changed by Congress, the concept of residence in 1694, which is the service of process provision and allows for nationwide service of process

[00:36:50] Speaker 04:
if there's acts of infringement within that district.

[00:36:53] Speaker 04:
And so those two, I think, this argument was simply, we've gotten the briefs from V.E.

[00:36:57] Speaker 04:
Holdings, and it simply was never made in the V.E.

[00:36:59] Speaker 04:
Holdings.

[00:36:59] Speaker 04:
So there's certain arguments that never were before the court in V.E.

[00:37:04] Speaker 04:
Holdings.

[00:37:05] Speaker 04:
The third point I'd like to say, and this is maybe just reiterating, V.E.

[00:37:08] Speaker 05:
Holdings itself did not impose a sort of... If there's certain arguments that weren't before the court in V.E.

[00:37:14] Speaker 05:
Holdings,

[00:37:15] Speaker 05:
That doesn't give us the freedom to overrule a statutory interpretation in V.E.

[00:37:19] Speaker 05:
Holdings.

[00:37:20] Speaker 05:
At most, I just want to make sure I'm understanding.

[00:37:22] Speaker 05:
At most, it is fodder for a potential in-bank, right?

[00:37:27] Speaker 04:
It is that, but it also is quite clear that V.E.

[00:37:30] Speaker 04:
Holdings no longer is the law because the statutory language has been repealed by Congress.

[00:37:34] Speaker 05:
But that's not what you just said.

[00:37:36] Speaker 05:
I'm trying to understand the point you made as your number two point, which is there was an argument that wasn't made in VE Holdings.

[00:37:43] Speaker 04:
That's true.

[00:37:44] Speaker 04:
And it is true that we definitely want to maintain the opportunity to perhaps present an en banc petition to the court.

[00:37:51] Speaker 04:
Although the language and the reasoning of V.E.

[00:37:54] Speaker 04:
Holdings is very much tied to language in the statute that doesn't exist, hasn't existed for five years.

[00:37:59] Speaker 04:
Okay, so what are three and four?

[00:38:01] Speaker 04:
I don't want to miss a point.

[00:38:02] Speaker 04:
Three and four.

[00:38:03] Speaker 04:
Three and four is just that V.E.

[00:38:04] Speaker 04:
Holdings did not impose a requirement that the party seeking change in the venue's laws prove a clear intention on the part of Congress or show some acknowledgement by Congress that is making a dramatic change.

[00:38:16] Speaker 04:
And I would submit that

[00:38:17] Speaker 04:
we should be held to the same standard.

[00:38:19] Speaker 04:
In other words, we do not need to have any kind of clear legislative history to prove that Congress meant what it said in the 2011 acts.

[00:38:28] Speaker 04:
Finally, I would say with respect to the failed bills that have occurred in Congress, the proposals.

[00:38:32] Speaker 05:
I don't think there's any problem in terms of Congress meant what it said.

[00:38:36] Speaker 05:
I think that your most difficult problem is that when it said accept is otherwise provided by law, even

[00:38:43] Speaker 05:
If you're right about decisional law being incorporated, the decisional law didn't favor you at the time that this was adopted.

[00:38:51] Speaker 05:
Well, I think the decisional law was at best on a different statute, something you keep stressing to me about VE holding.

[00:38:57] Speaker 05:
So that clearly can't be the dispositive decisional law that Congress was meaning to leave in place, because it wasn't even on the words of these statutes, as you keep telling me.

[00:39:08] Speaker 05:
And then VE holding is a Federal Circuit case.

[00:39:13] Speaker 05:
I just, my problem with your argument isn't the legal points that you're making necessarily.

[00:39:18] Speaker 05:
It's more like the facts, because I don't know what decisional law existed in 2011 that made it clear Congress meant to leave in place that state of the law that you're asking me for today.

[00:39:30] Speaker 04:
I think Forco interpreted section 1400B to have this implicit definition.

[00:39:35] Speaker 04:
V. Holdings thought that Congress had overridden that definition.

[00:39:39] Speaker 04:
Congress later repealed that language.

[00:39:41] Speaker 04:
And therefore, I think that the definition in 1400B that the Supreme Court found in its case law is then again the law.

[00:39:50] Speaker 04:
That, I think, is our... I still want to hear your fourth point, and then I have a question for you.

[00:39:54] Speaker 04:
So don't worry about that.

[00:39:55] Speaker 04:
So the fourth point is, I don't think just because of failed bills that you should try to freeze the law.

[00:40:03] Speaker 04:
Because the failed bills in this case, that often happens that there's a policy issue that comes up or an issue that comes up, a legal issue.

[00:40:11] Speaker 04:
Congress might be considering legislating on it, but this court might also be considering reconsidering its own precedence.

[00:40:17] Speaker 04:
Or in light of new legislative changes, considering what those legislative changes mean.

[00:40:22] Speaker 04:
And just because Congress is also considering something on Capitol Hill doesn't mean that this court is disabled from interpreting the new language in a new statute.

[00:40:31] Speaker 05:
Okay, my question is I'd like you just to spend a minute if you don't mind.

[00:40:34] Speaker 05:
You also raised a personal jurisdiction argument and you haven't addressed it.

[00:40:39] Speaker 05:
So I'm not sure I should take away from that.

[00:40:41] Speaker 05:
Why don't you spend a minute addressing it or tell me maybe you're meaning to give it up?

[00:40:46] Speaker 05:
I don't know.

[00:40:47] Speaker 04:
No, we're definitely not meaning to give it up.

[00:40:49] Speaker 04:
It's actually part of the of the venue argument because the venue statute, even if 1391C2 is read into

[00:40:57] Speaker 04:
1,400 B.

[00:40:58] Speaker 04:
1,391 C2 does require that there be personal jurisdiction over the action, over the entirety of the action, I think.

[00:41:07] Speaker 04:
Is that?

[00:41:08] Speaker 05:
Yes, but if that argument is right, then there's no personal jurisdiction in any district if you're selling.

[00:41:14] Speaker 05:
Or are you suggesting that a patentee has to sue you in every single district separately for only the products you sell there?

[00:41:21] Speaker 04:
We are not suggesting that because we actually think this is exactly why Congress wrote 1694.

[00:41:25] Speaker 04:
If you go back to the Stonai case, I think this is an old problem.

[00:41:29] Speaker 04:
In other words, we're trying to resolve a problem that Congress solved in the 1897 statute.

[00:41:34] Speaker 04:
That Congress saw this problem, a venue, and it dealt with it together in one section.

[00:41:39] Speaker 04:
It's now split into two things.

[00:41:40] Speaker 04:
And it has a service of process provision.

[00:41:43] Speaker 04:
And then you're not dependent upon the long-arm statute of Delaware.

[00:41:46] Speaker 05:
What does this have to do with personal jurisdiction?

[00:41:48] Speaker 05:
I'm missing your connection.

[00:41:49] Speaker 04:
Oh, because personal jurisdiction under the federal rules of civil procedure is established under federal rule of civil procedure 4K.

[00:41:57] Speaker 04:
And it can either be established under 4K1, which is using the Delaware long-arm statute.

[00:42:03] Speaker 04:
That is how the respondents in this case use established personal jurisdiction.

[00:42:07] Speaker 04:
Or it can be established under a federal statute.

[00:42:11] Speaker 04:
And then the minimum context is not to Delaware, it's to the United States.

[00:42:16] Speaker 04:
And that's 4K3.

[00:42:18] Speaker 04:
So that is what would apply if 1694 were to be used.

[00:42:23] Speaker 04:
So in other words, Congress has already dealt with this situation that if there is infringement, and there certainly are hypotheticals, you could imagine, where the infringement or products come to a district where there are no minimum contacts.

[00:42:38] Speaker 04:
That's exactly what Congress wanted to do in the 1897 statute that's now split into two pieces.

[00:42:43] Speaker 04:
That's why they should be read in pari materia.

[00:42:46] Speaker 04:
That's why the Supreme Court's decision in Forco

[00:42:49] Speaker 04:
Makes sense.

[00:42:49] Speaker 04:
It makes sense because Congress dealt with this whole problem as an integrated whole.

[00:42:53] Speaker 05:
OK.

[00:42:54] Speaker 05:
But going back to personal jurisdiction, because that was my question, so I don't understand.

[00:42:58] Speaker 05:
Where is their personal jurisdiction?

[00:43:01] Speaker 05:
If I understand it right, your complaint was only 2% of your sales go to Delaware.

[00:43:08] Speaker 05:
And I assume all the rest of your sales are divided among all of the states in the country, most likely.

[00:43:13] Speaker 04:
Roughly speaking, yes.

[00:43:14] Speaker 05:
So if your complaint is there's no personal jurisdiction over you in Delaware, because only 2% of your sales go there, and there happen to be roughly 50 states, I don't understand.

[00:43:25] Speaker 05:
Where is there personal jurisdiction over you?

[00:43:27] Speaker 05:
Are you saying there's only personal jurisdiction over you for the 2% of the sales that go to Delaware, or there's no personal jurisdiction over you at all in Delaware?

[00:43:35] Speaker 02:
Or are you saying that they drink a lot of water in Texas?

[00:43:40] Speaker 04:
Well, I'm not saying that.

[00:43:42] Speaker 04:
I'm not saying about the water that they're drinking.

[00:43:44] Speaker 04:
Oh, yeah.

[00:43:44] Speaker 05:
Are you asking us to move your case from Delaware to Texas?

[00:43:46] Speaker 04:
I didn't understand that.

[00:43:47] Speaker 04:
No, our change of venue is to the southern district.

[00:43:49] Speaker 04:
The southern district of Indiana is the change of venue statute, the change of venue motion that is before the court.

[00:43:56] Speaker 04:
I would say that we're saying that,

[00:44:00] Speaker 04:
We don't think that there's jurisdiction with respect to the 2% because we don't think that we purposely availed ourselves of anything about Delaware.

[00:44:07] Speaker 04:
The most we did was ship products.

[00:44:09] Speaker 05:
You sell 600,000 bottles of water in Delaware.

[00:44:11] Speaker 04:
We ship them there, actually.

[00:44:13] Speaker 05:
Isn't that right?

[00:44:13] Speaker 05:
600,000?

[00:44:14] Speaker 05:
Don't I have the number somewhat right?

[00:44:17] Speaker 04:
We certainly sold.

[00:44:18] Speaker 05:
Is it 600 million?

[00:44:18] Speaker 05:
I mean, what am I missing?

[00:44:21] Speaker 04:
We didn't sell it to Delaware.

[00:44:23] Speaker 04:
We delivered it to Delaware on a contract with a client that is outside of Delaware who instructed

[00:44:30] Speaker 05:
That's not really your argument.

[00:44:32] Speaker 05:
Your argument boiled down to only 2% go to Delaware.

[00:44:35] Speaker 04:
Only 2% go to Delaware.

[00:44:37] Speaker 04:
So there certainly can't be personal jurisdiction.

[00:44:40] Speaker 05:
What if 2% go to each of the 50 states?

[00:44:42] Speaker 05:
Does that mean there's no personal jurisdiction over you anywhere?

[00:44:45] Speaker 04:
Well, there would be, obviously, if we use the traditional framework that Congress established.

[00:44:51] Speaker 04:
Because all we would need is that the plaintiff would simply have to find a district in which we've committed acts of infringement

[00:44:59] Speaker 04:
And we have a regular and established place of business.

[00:45:02] Speaker 04:
And for somebody who's engaged in nationwide distribution, there might be other districts that they are amenable to.

[00:45:10] Speaker 05:
And once they're amenable, they are what?

[00:45:11] Speaker 05:
If you were McDonald's, for example, I could sue you in any district under that logic.

[00:45:16] Speaker 04:
I don't know McDonald's corporate structure.

[00:45:20] Speaker 04:
I think they use a franchising method.

[00:45:22] Speaker 04:
Starbucks, I think, owns their stores.

[00:45:28] Speaker 04:
So that's a regular and established place of business, I think.

[00:45:31] Speaker 04:
And if they are committing acts of infringement there,

[00:45:34] Speaker 04:
Then yes, you can sue them in each and every district that they have a Starbucks.

[00:45:39] Speaker 05:
Or in only one of those districts and sue them on the basis of all of the infringement committed in all the districts.

[00:45:43] Speaker 04:
That is right, because then you'd be using 1694.

[00:45:46] Speaker 04:
You would not use the state long-arm statute to serve process.

[00:45:50] Speaker 04:
You would use the federal statute, which is 1694.

[00:45:53] Speaker 04:
And then you would be able to serve process across the entire United States.

[00:45:57] Speaker 04:
And the due process analysis would be a federal due process analysis, not limited by that particular state's law.

[00:46:05] Speaker 05:
And one last question.

[00:46:06] Speaker 05:
Do you think this is something we can do as a panel, or do you think in light of prior precedent of this court, it would have to be done by the in-bank court?

[00:46:13] Speaker 04:
I definitely think you can do it as a panel, because this is new statutory language that has never been interpreted by this court.

[00:46:18] Speaker 04:
Personal jurisdiction?

[00:46:19] Speaker 04:
Oh, personal jurisdiction.

[00:46:21] Speaker 04:
Oh, the personal jurisdiction point.

[00:46:23] Speaker 04:
I do think that you can do it as a panel, because our cases distinguish from the Beverly Hills fan case.

[00:46:29] Speaker 04:
And also, there have been intervening Supreme Court decisions.

[00:46:31] Speaker 04:
There's been a quartet of Supreme Court decisions on personal jurisdiction, and at least two that deal specifically with specific jurisdiction, which is what is at issue in this case.

[00:46:42] Speaker 04:
And those tests are more restrictive.

[00:46:43] Speaker 04:
Those didn't exist at the time of the panel decision in Beverly Hills fan.

[00:46:47] Speaker 04:
So we're not only distinguishable from Beverly Hills fan,

[00:46:49] Speaker 04:
But there's also been intervening developments in the law of personal jurisdiction.

[00:46:57] Speaker 04:
Thank you for the question.

[00:46:58] Speaker 04:
Thank you very much.

[00:46:58] Speaker 05:
I thank both counsel for their argument.

[00:47:00] Speaker 05:
The case is taken under submission.

[00:47:03] Speaker 06:
All rise.

[00:47:14] Speaker 06:
The honorable court is adjourned for today.