[00:00:01] Speaker 03:
We have four argued cases this morning.

[00:00:04] Speaker 03:
The first is number 18, 1121, Max Chief Investments Limited versus Walken Pan.

[00:00:12] Speaker 03:
Mr. Bradford.

[00:00:28] Speaker 03:
Go ahead.

[00:00:29] Speaker 01:
May I please support Michael Bradford for Max Chief Investments Limited.

[00:00:33] Speaker 01:
The main issue in this case is whether Walkin Pan's request for an out-of-state courts to issue an injunction against Tennessee-based NECO is sufficient to subject Walkin Pan to personal jurisdiction in Tennessee for a related declaratory judgment action.

[00:00:50] Speaker 01:
And it's important to keep in mind that Walkin Pan filed this case against Staples in California, where Staples is a mere reseller.

[00:00:58] Speaker 01:
It's his and Staples' product.

[00:01:00] Speaker 01:
It's exclusively distributed by MECO.

[00:01:03] Speaker 01:
And so this is basically what's called a customer suit.

[00:01:09] Speaker 01:
And this court's Nintendo and Cats decisions.

[00:01:14] Speaker 01:
The court explained in customer suits where a reseller is sued, the product supplier, even if they're not named, is often and generally the true defendant.

[00:01:25] Speaker 01:
because for purposes of indemnity or for just customer relationships, they are typically required to come in and defend the staples in this case, the reseller.

[00:01:41] Speaker 02:
So was MECO or MACO specifically targeted in the California action?

[00:01:48] Speaker 01:
Well, I believe they were.

[00:01:49] Speaker 02:
The case was about a very specific... I'm talking specifically.

[00:01:51] Speaker 02:
Are they named?

[00:01:52] Speaker 01:
Well, they're not named as a party.

[00:01:55] Speaker 01:
But the complaint has several photographs of the product at issue.

[00:02:04] Speaker 01:
As you can see, they form part of the complaint.

[00:02:06] Speaker 01:
For example, Appendix 228 shows the product, Southern Solution, by MECO, MECO Corporation, Greenville, Tennessee.

[00:02:15] Speaker 01:
Appendix 228.

[00:02:18] Speaker 01:
is a shipping label that was attached to the product issue from MECO Corporation, Greenville, Tennessee.

[00:02:27] Speaker 01:
And then Appendix 230 shows a label that was affixed to the product.

[00:02:34] Speaker 01:
And this is from their complaint full page label that shows MECO Corporation, Greenville, Tennessee.

[00:02:41] Speaker 03:
Okay, but accepting that, there doesn't seem to be any connection

[00:02:46] Speaker 03:
with Tennessee here with respect to the patent claim except for the fact that that's where MECO's principal place of business is, right?

[00:02:54] Speaker 03:
There wasn't any, weren't threats communicated to MECO in Tennessee or any effort to enforce the patent against MECO?

[00:03:04] Speaker 01:
Well, I mean the request for an injunction against the distributor of the product, the request for relief specifically asked for an injunction not against just Staples, but against the distributor.

[00:03:15] Speaker 01:
I mean it's

[00:03:16] Speaker 01:
It's explicitly asked for an injunction against the distributor.

[00:03:20] Speaker 01:
So that action expressly targets Tennessee.

[00:03:25] Speaker 01:
And that's part of the Calder FX test.

[00:03:29] Speaker 01:
What's the focal point of lock-in-pants action here?

[00:03:34] Speaker 01:
Staples is a reseller.

[00:03:36] Speaker 01:
The focal point is Miko.

[00:03:47] Speaker 02:
The California action is an enforcement action and an injunction that you're talking about is a result of that enforcement action.

[00:04:17] Speaker 02:
that the suit in Tennessee was for declaratory judgment.

[00:04:20] Speaker 02:
Correct.

[00:04:21] Speaker 02:
I mean, there's a difference there, isn't there?

[00:04:23] Speaker 01:
Well, but the enforcement activity, that's what's necessary to create a declaratory judgment jurisdiction.

[00:04:32] Speaker 01:
And upon the Staples case, again, the focal point of that being MECO in Tennessee,

[00:04:40] Speaker 01:
Staples' immediate response was to send a letter to MECO in Tennessee asking for a defense.

[00:04:47] Speaker 01:
They asked for indemnity in Tennessee from MECO.

[00:04:50] Speaker 01:
MECO is the exclusive distributor to this product, but it's made by Max Chief.

[00:04:59] Speaker 01:
And so upon receiving this request for indemnity, Nico then asked Max Chief, well, hey, come and defend us and also handle this.

[00:05:12] Speaker 02:
You're arguing a question that I believe this court already answered, an advocate.

[00:05:17] Speaker 01:
Well, the advocate decision, it discusses there were other cases in other jurisdictions.

[00:05:26] Speaker 01:
The issue there is they had no relation to the forum.

[00:05:30] Speaker 01:
At least there's no mention of any relation to the forum.

[00:05:32] Speaker 01:
Now, if the California case involved a California distributor, and all the parties were in California, and it asked for an injunction against California parties, well, we wouldn't be saying that that subject's walking pan of jurisdiction in Tennessee.

[00:05:52] Speaker 03:
Well, why didn't you just counter-claim in California for a declaratory judgment?

[00:05:59] Speaker 01:
Well, because, for one thing, because NECO is based in Tennessee.

[00:06:04] Speaker 01:
And that's... So why would that affect that?

[00:06:07] Speaker 01:
Well, the match chief is protecting his customer.

[00:06:10] Speaker 01:
The whole genesis of the declaratory judgment action was NECO saying, hey... But what I'm trying to get at is what do you lose by

[00:06:19] Speaker 03:
Raising that in the California forum instead of going to Tennessee.

[00:06:23] Speaker 01:
Well, that's not the correct

[00:06:25] Speaker 01:
It's not the correct party.

[00:06:27] Speaker 01:
Staples shouldn't be handling this case.

[00:06:29] Speaker 01:
And that's, and what really is happening here is Staples.

[00:06:33] Speaker 04:
Staples is the correct party.

[00:06:35] Speaker 04:
They're distributing and infringing the law.

[00:06:37] Speaker 04:
Well, I mean that to me, you're saying, well, it'd be more convenient for Staples and the producer and distributor for it to have it all handled in Tennessee.

[00:06:49] Speaker 04:
But there's one thing in the statute that prevents them from suing Staples instead.

[00:06:53] Speaker 01:
Well,

[00:06:54] Speaker 04:
They can sue Staples, but as explained in Nintendo... Right, so the suit in California is perfectly legitimate.

[00:07:01] Speaker 04:
If Staples wants somebody to come in and indemnify them under whatever their contractual agreements they can, but that doesn't mean the suit in California is improper.

[00:07:12] Speaker 01:
Well, the cases in California weren't dismissed.

[00:07:17] Speaker 01:
They're just stayed under the customer suit.

[00:07:19] Speaker 04:
Well, sure, but you're suggesting that this case should proceed under declaratory judgment theory in Tennessee because they chose to, you know, they're suing, essentially, max chief, not Staples.

[00:07:31] Speaker 04:
But they're the pattern, are they going to make the decision where they sue for infringement?

[00:07:36] Speaker 04:
Why should you, as a, I think you're a foreign company, right?

[00:07:42] Speaker 01:
I'm actually a business partner.

[00:07:43] Speaker 04:
Do they have any business location in the United States?

[00:07:47] Speaker 01:
Not to my knowledge.

[00:07:48] Speaker 04:
Why should you get to dictate the forum of validity determinations?

[00:07:54] Speaker 04:
rather than the patent holder and where they want to sue for infringement?

[00:07:58] Speaker 01:
Because, again, they're protecting their customer MECO.

[00:08:01] Speaker 04:
They can protect their customer in California.

[00:08:03] Speaker 01:
Well, that is true, but MECO will be involved in this case.

[00:08:08] Speaker 01:
And, you know, what can Pan is doing?

[00:08:13] Speaker 01:
Since the TC Heartland decision, what's happened is, you know, patent owners, where they can sue has been curtailed, right?

[00:08:19] Speaker 01:
And it's where a alleged infringer has a principal place of business or has a residence.

[00:08:28] Speaker 01:
And so basically what Walkin Pan is doing is saying, well, this product is supplied by NECO.

[00:08:40] Speaker 01:
We don't want to sue them where we're supposed to in Tennessee.

[00:08:43] Speaker 01:
We're going to sue Staples.

[00:08:44] Speaker 01:
And as this court recognized in Cats and Nintendo,

[00:08:48] Speaker 01:
What that does is that the true defendant in the Staples case is NICO.

[00:08:52] Speaker 01:
You're making NICO come to California, or luckily for them, they're having somebody else.

[00:09:01] Speaker 01:
The product supplier is forced to come into a jurisdiction where they shouldn't have to be defending a case.

[00:09:09] Speaker 02:
It seems to me that your argument really leads to the conclusion that Max should have followed his declaratory action in California.

[00:09:19] Speaker 01:
I don't think they had to.

[00:09:22] Speaker 03:
What would you lose by doing that?

[00:09:26] Speaker 01:
Well, what we would lose is MECO is their customer.

[00:09:33] Speaker 01:
They want to make MECO happy.

[00:09:35] Speaker 01:
They're located in Greenville.

[00:09:38] Speaker 01:
The court where the DJ Action was sued is in Greenville.

[00:09:43] Speaker 01:
It's the jurisdiction where MECO is located.

[00:09:46] Speaker 04:
But why do they care?

[00:09:47] Speaker 04:
If Max Chief is the one that's going to come in and defend the suit on their behalf in California, then what difference does it make that it's in California or Tennessee?

[00:09:58] Speaker 01:
Well, I mean, MECO is going to be very involved.

[00:09:59] Speaker 01:
I mean, in their state, the state wants to protect.

[00:10:04] Speaker 04:
How do you think they're going to be involved?

[00:10:06] Speaker 01:
Well, they're the one distributing this throughout the country.

[00:10:09] Speaker 01:
Meeko is selling to Staples.

[00:10:13] Speaker 04:
I mean, they're... They're... How does that relate to the declaratory judgment action?

[00:10:18] Speaker 04:
Isn't it... I mean, are they going to be all that involved?

[00:10:22] Speaker 04:
Is this just in validity, or do you have non-encouragement conditions, too?

[00:10:26] Speaker 04:
But you're the one... I mean, Max Suites is the one that makes the product.

[00:10:28] Speaker 04:
Correct.

[00:10:29] Speaker 04:
Meeko's just a pass-through distributor.

[00:10:31] Speaker 01:
Well, I mean, they've been involved... I don't know what the specifics of this.

[00:10:35] Speaker 01:
They have been involved in design in the past.

[00:10:38] Speaker 01:
I mean, I think they will be involved in this case.

[00:10:42] Speaker 04:
If Lockham Hannon wanted to sue Max Chief, where would they have sued them?

[00:10:51] Speaker 01:
Well, I know they could have sued them in D.C., I don't know.

[00:10:53] Speaker 01:
Off the top of my head, where they may be subject to jurisdiction.

[00:11:01] Speaker 01:
But perhaps, I mean, they would have consented to jurisdiction in Tennessee.

[00:11:06] Speaker 03:
Before we run out of time, let me ask you a question about the tortious interference claim.

[00:11:12] Speaker 03:
Sure.

[00:11:12] Speaker 03:
And if there had been threatening letters sent to customers in Tennessee, it may well be that there would be jurisdiction over the tortious interference claim, and theoretically maybe the tortious interference claim could be combined with the declaratory judgment action.

[00:11:29] Speaker 03:
But as I understand it, there's only one threatening letter that was sent to Tennessee.

[00:11:36] Speaker 03:
And that concerned, if I recall correctly, a Kansas entity.

[00:11:42] Speaker 03:
Is that correct?

[00:11:43] Speaker 01:
It was an out-of-state entity.

[00:11:44] Speaker 01:
It was not a Tennessee entity.

[00:11:46] Speaker 01:
But it was sent to Tennessee.

[00:11:47] Speaker 03:
It was only the one letter.

[00:11:48] Speaker 01:
It was one letter, correct.

[00:11:50] Speaker 01:
There were other letters sent to other jurisdictions.

[00:11:53] Speaker 03:
Other letters in other jurisdictions?

[00:11:54] Speaker 01:
I remember about a little time ago.

[00:11:56] Speaker 01:
Do you want me to?

[00:11:57] Speaker 03:
I didn't believe any of that question.

[00:12:00] Speaker 03:
Okay, you can save your remote.

[00:12:07] Speaker 03:
Mrs. Bray?

[00:12:14] Speaker 00:
You're going to need to move the microphone down so that I'm speaking into it.

[00:12:22] Speaker 03:
Is there any question that if Max Chief had filed a third-party complaint in California that there would be personal jurisdiction over Walkin Pan to adjudicate that?

[00:12:39] Speaker 00:
No.

[00:12:41] Speaker 00:
Walk and Pan, although it's a Chinese company, does business in California.

[00:12:54] Speaker 00:
California also, in addition, as I understand it, Max Chief Appellant distributes in California too.

[00:13:05] Speaker 00:
So that would have worked.

[00:13:07] Speaker 00:
But I want to clarify a few things, your questions, which were totally on point.

[00:13:16] Speaker 00:
Walkenpan only did two things, and all of them were out of state.

[00:13:20] Speaker 00:
There were no letters in Tennessee.

[00:13:22] Speaker 00:
Some letters were sent to possible infringing parties after Walkenpan noticed it were.

[00:13:32] Speaker 00:
possibly infringing tables in Bingsel and Staples and Walmart and Lowe's.

[00:13:39] Speaker 00:
And those letters were sent in California, they were sent in Illinois and some other states, but nothing was sent to Tennessee.

[00:13:49] Speaker 00:
Nothing.

[00:13:49] Speaker 03:
And... Well, I thought there was one letter that was sent to Tennessee, but it was sent to a non-Tennessee entity.

[00:13:56] Speaker 00:
No.

[00:13:58] Speaker 00:
I don't think there were any letters sent to Tennessee.

[00:14:01] Speaker 00:
But even if there were, as you know, Your Honor, letters regarding infringement have a privileged status anyway.

[00:14:08] Speaker 00:
And they do not draw the party into jurisdiction, Your Honor, specific personal jurisdiction, because of the privileged status of infringement letters.

[00:14:18] Speaker 00:
And in addition, the out-of-state... Well, no, no, I'm not talking about infringement letters.

[00:14:24] Speaker 03:
I'm talking torsion interference, threatening letters.

[00:14:29] Speaker 00:
Well, torsos interference is, I believe, Your Honor, a misidentification of what Wauke Pan has done.

[00:14:40] Speaker 00:
Torsos interference is like an overstatement of a party trying to enforce their pact.

[00:14:47] Speaker 00:
And they're claiming by torsos interference that there's something wrong with that.

[00:14:53] Speaker 03:
Well, there is something wrong with it if the threats are baseless, right?

[00:15:01] Speaker 03:
If the threats are baseless, there would be something wrong with it.

[00:15:04] Speaker 00:
Well, that would be a question that's premature, and in addition, the right of a party to enforce its patent.

[00:15:18] Speaker 03:
It's a simple proposition.

[00:15:19] Speaker 03:
If you send baseless letters accusing someone of infringement and send those into the state, that could be the basis for a torsos interference claim, right?

[00:15:37] Speaker 03:
If they were sent into the state, that would create the basis for a tortious interference claim, and there would be personal jurisdiction over that, right?

[00:15:49] Speaker 00:
I would disagree with that, Your Honor, because the presumption of validity allows the patentee to try to enforce their patent.

[00:15:59] Speaker 03:
You're discarding my hypothetical.

[00:16:01] Speaker 03:
I'm saying that claims are baseless.

[00:16:04] Speaker 00:
Well, baseless will mean that there's no right to patent.

[00:16:08] Speaker 03:
Well, that's exactly right.

[00:16:09] Speaker 03:
That's the problem.

[00:16:11] Speaker 03:
I mean, I don't understand why you're fighting this.

[00:16:14] Speaker 03:
If you claim to have patent rights and you send threatening letters into the state and the claims are baseless,

[00:16:25] Speaker 03:
That could lead to a tortious interference claim, right?

[00:16:28] Speaker 03:
And under Calder, there would be personal jurisdiction.

[00:16:32] Speaker 00:
As a hypothetical, but that didn't happen here.

[00:16:35] Speaker 03:
I understand.

[00:16:37] Speaker 00:
If that didn't happen here, there were no letters sent into the state.

[00:16:41] Speaker 03:
But there was, no, there was one letter sent into the state.

[00:16:45] Speaker 03:
Am I mistaken?

[00:16:45] Speaker 03:
I thought that I read in the record there was one letter.

[00:16:51] Speaker 00:
Walkin Pan doesn't have any distributors or any connections in Tennessee, but distributors are all appellants.

[00:16:59] Speaker 00:
There's really been no contacts with Tennessee, other than from sales, commercial activity, which doesn't count for specific personal jurisdiction.

[00:17:10] Speaker 02:
I think we'll get back to the letter in a little bit, but let me ask you, doesn't Walkin Pan have sales in Tennessee?

[00:17:17] Speaker 00:
Yes, they do.

[00:17:18] Speaker 02:
So why shouldn't the fact that

[00:17:20] Speaker 02:
You're selling in Tennessee, subject to jurisdiction there.

[00:17:26] Speaker 00:
Commercial activity in and of itself doesn't create personal jurisdiction.

[00:17:33] Speaker 02:
Not by itself, but is it a factor?

[00:17:35] Speaker 02:
Can it be a factor?

[00:17:36] Speaker 00:
I don't think so, Your Honor.

[00:17:39] Speaker 02:
What legal authority do you have for that?

[00:17:42] Speaker 00:
The Supreme Court Burger King case.

[00:17:45] Speaker 00:
requires for personal jurisdiction in a declaratory adjustment action that the defendant have purposely directed their activities to the state and those activities relate to litigation and that a certain personal jurisdiction would comport with fair play.

[00:18:07] Speaker 02:
So, okay, I agree that commercialization alone is not

[00:18:13] Speaker 02:
enough to confer a jurisdiction.

[00:18:15] Speaker 02:
But what about commercialization in conjunction with a letter indicating torches interference?

[00:18:26] Speaker 00:
That might imply some kind of enforcement.

[00:18:32] Speaker 00:
If it implies some kind of connection to the enforcement of the patent that is the subject of the Declaratory Judgment Act, there might be some connection there.

[00:18:40] Speaker 00:
That's not the case here.

[00:18:41] Speaker 03:
Well, what about the letter that appears at Appendix 278?

[00:18:45] Speaker 03:
Do you have the appendix, Anne?

[00:18:49] Speaker 00:
No, I don't.

[00:18:50] Speaker 03:
You don't bring the appendix to the argument?

[00:18:55] Speaker 03:
We expect you to have the appendix so you can answer our questions.

[00:19:01] Speaker 00:
Well, in terms of talking about the commercial activities,

[00:19:23] Speaker 00:
A number of cases in this court has held directly that commercial activities don't directly impact the question of personal jurisdiction, particularly in an action on collective judgment where the due process connection relates to enforcement of the patent.

[00:19:48] Speaker 00:
Your question was, if there was tortures,

[00:19:51] Speaker 00:
interference related to the enforcement of the patent somehow in the state?

[00:19:57] Speaker 00:
Hypothetically, maybe yes, but that's not the case here.

[00:20:01] Speaker 00:
There's really no connection with Tennessee concerning enforcement.

[00:20:05] Speaker 00:
I think there's kind of a myth in woe in here that there was a targeting of Tennessee in any way.

[00:20:16] Speaker 00:
Wacom Pan actually

[00:20:18] Speaker 00:
sent some letters concerning infringement, brought illegal action because of that, and those things had no connection whatsoever to Tennessee.

[00:20:28] Speaker 00:
They were all out of state, out of program activity.

[00:20:30] Speaker 04:
Are you saying that you didn't send any infringement letters into Tennessee?

[00:20:36] Speaker 00:
Correct.

[00:20:36] Speaker 04:
I mean, it would be helpful if you have attendance, because what we're looking at is a letter dated October 15, 2015, saying your law represents lock and pan, and that Coleman Company is infringing.

[00:20:50] Speaker 04:
And this letter is sent to an attorney in Knoxville, Tennessee.

[00:20:54] Speaker 04:
And it is signed by Mr. Lack.

[00:20:58] Speaker 04:
So it seems like you're not.

[00:21:00] Speaker 04:
There's at least one letter.

[00:21:02] Speaker 03:
I'm going to give you my copy of the appendix so that you can look and see the letter we're talking about.

[00:21:19] Speaker 00:
Yes, there does seem to be a letter to Tennessee.

[00:21:22] Speaker 03:
Well, then why did you tell us there were no letters?

[00:21:25] Speaker 03:
You're supposed to understand your own record, you know?

[00:21:31] Speaker 00:
Let me say this.

[00:21:34] Speaker 00:
In a number of cases, Averson, Breckenridge, and other cases, letters sent to the forum still do not amount to a specific personal jurisdiction in the case because

[00:21:47] Speaker 00:
sending an infringement letter as a privilege status that a patentee has and doesn't implicate specific commercial jurisdiction.

[00:21:58] Speaker 00:
The cases have held that there must be other activities, other activities toward enforcement of a patent in the form.

[00:22:05] Speaker 00:
That other activities has to be something very specific related to enforcement of the intellectual property.

[00:22:15] Speaker 00:
In the cases,

[00:22:18] Speaker 00:
There has been licensing, distributorships, commercialization, a number of things that other parties have done, and that does not qualify for personal jurisdiction.

[00:22:29] Speaker 03:
It doesn't qualify for a declaratory judgment action to send letters into the state, but why wouldn't it qualify as a basis for personal jurisdiction over a torsional interference claim under Calder?

[00:22:47] Speaker 00:
Possibly it would, but I don't believe the facts align with this case.

[00:22:57] Speaker 00:
First of all, second of all, maybe third of all, the tortures interference claim

[00:23:11] Speaker 00:
is a state claim, which essentially is preempted by federal law.

[00:23:19] Speaker 00:
The claim of tortious interference is something that was dealt with by this court in Grove-Cotter software versus Elac computer.

[00:23:30] Speaker 00:
where they said patent would be of little value if infringers could be notified, if infringers could not be notified of the infringement.

[00:23:40] Speaker 00:
And basically it discussed the fact that sending out letters about patents, not porcelain interference,

[00:23:48] Speaker 00:
When the letters sent?

[00:23:50] Speaker 04:
Well, they are.

[00:23:50] Speaker 04:
They're frivolous allegations of infringement or they're allegations relating to a patent that is not reasonably known to be valid.

[00:24:01] Speaker 00:
But that's a question that's way premature.

[00:24:04] Speaker 04:
And it's not necessarily.

[00:24:06] Speaker 04:
I mean, you may have dockets, records.

[00:24:09] Speaker 04:
Again, this is hypothetical.

[00:24:11] Speaker 04:
If you have records in your

[00:24:13] Speaker 04:
business that says this company is making something similar, it's closed, but it doesn't infringe, but yet you send out an infringement letter, that's frivolous, isn't it?

[00:24:22] Speaker 04:
That would be grounds for tortious interference, wouldn't it?

[00:24:27] Speaker 00:
Hypothetically, but how would you know this until later on until you have a litigation on that?

[00:24:36] Speaker 04:
But that doesn't mean that there's no... I mean, you're suggesting that Patmull preempts Torchis and her parents' claims altogether.

[00:24:44] Speaker 04:
It clearly doesn't, so somebody could file a claim.

[00:24:47] Speaker 04:
They may lose because you may prove you have good faith in asserting infringement and validity, and they didn't have a good basis for asserting the opposite.

[00:24:57] Speaker 04:
But that doesn't mean the cause of that doesn't exist.

[00:25:00] Speaker 04:
I don't understand your answer to our question.

[00:25:02] Speaker 04:
If, hypothetically, the facts would have shown that you were asserting these patents in a frivolous way, that would form the basis for a tortious interference case, wouldn't it?

[00:25:15] Speaker 00:
Hypothetically, yes.

[00:25:16] Speaker 04:
And if those infringement actions were directed at Tennessee, wouldn't that create personal jurisdiction for that Tennessee company to file a declaratory judgment action in combination with a torture-degenerative spying?

[00:25:32] Speaker 00:
I think hypothetically you have a point there, but

[00:25:36] Speaker 00:
The cases have held very clearly that sending infringement letters is a privileged thing that Patenties are free to do without fear of jurisdiction in another form.

[00:25:54] Speaker 00:
In the cases of Avacyn, Breckenridge, and Campbell-Pett, letters were sent.

[00:26:02] Speaker 00:
Maybe there were allegations, probably allegations that... But Avacyn, in that case, it doesn't involve a tortious interference claim.

[00:26:12] Speaker 00:
Doesn't involve what?

[00:26:14] Speaker 02:
Tortuous interference.

[00:26:16] Speaker 00:
No, I don't think that does.

[00:26:18] Speaker 03:
Well, that's what we're talking about.

[00:26:20] Speaker 03:
That letter that appears at 278,

[00:26:23] Speaker 03:
is what they claim is the basis for personal jurisdiction over a tortious interference claim.

[00:26:29] Speaker 03:
And apparently, similar letters were sent to entities in other states, right?

[00:26:36] Speaker 03:
You don't dispute that?

[00:26:39] Speaker 03:
No.

[00:26:39] Speaker 03:
And so does the letter that was at 278 concern activities in Tennessee?

[00:26:47] Speaker 00:
Apparently so.

[00:26:52] Speaker 03:
Is one letter enough to create personal jurisdiction?

[00:26:59] Speaker 00:
Well, my argument, Your Honor, is that letters do not create personal jurisdiction.

[00:27:05] Speaker 03:
You can't very well argue that if they sent 50 letters into Tennessee based on a frivolous allegation, a patent infringement, that wouldn't be sufficient for personal jurisdiction over a tortious interference claim, right?

[00:27:20] Speaker 00:
Right.

[00:27:23] Speaker 00:
I'm arguing, Your Honor, that trust, including torsion interference, at this stage is very premature.

[00:27:29] Speaker 00:
There's not really a case of that.

[00:27:33] Speaker 02:
I thought you would be arguing that there is no frivolous allegation of pen infringement, because the pen infringement case has been stayed.

[00:27:46] Speaker 02:
And we don't know whether there's pen infringement or not,

[00:27:50] Speaker 02:
And I thought your argument would be there cannot be a frivolous allegation, because we don't know.

[00:27:56] Speaker 02:
The patent infringement case has been stayed in California.

[00:28:01] Speaker 00:
You said it much better than me.

[00:28:03] Speaker 00:
That's what I'm trying to say about it being premature.

[00:28:07] Speaker 00:
In my mind, there's no frivolous allegations of patent infringement, and that hasn't been demonstrated.

[00:28:13] Speaker 03:
And how can there be... Well, in their tortious interference claim, they do allege.

[00:28:18] Speaker 03:
that the allegations of patent infringement are frivolous, right?

[00:28:22] Speaker 00:
They do allege that.

[00:28:24] Speaker 03:
Okay, so we don't know whether that'll prove out or not, but certainly if there were letters sent and allegations that they were frivolous, that would provide personal jurisdiction over a tortious interference claim, wouldn't it?

[00:28:37] Speaker 00:
Yes, the tortious interference requires some demonstration, though.

[00:28:42] Speaker 03:
Ultimately, when the case goes to trial, yes, but

[00:28:46] Speaker 03:
For personal jurisdiction, we're dealing with the allegations of the complaint.

[00:28:49] Speaker 03:
You don't lose personal jurisdiction just because you can't prove your claim.

[00:28:57] Speaker 00:
Well, I feel that the Torres Center Barracks claim is not appropriate at this time because there's no facts to back it up.

[00:29:05] Speaker 04:
It's just a... There's no facts to back it up when you file the complaint.

[00:29:10] Speaker 04:
It's based upon allegations of the complaint, and that's how jurisdiction is assessed.

[00:29:15] Speaker 04:
I only understand your argument that because they haven't proved it yet, there's no jurisdiction.

[00:29:21] Speaker 04:
That's never the way jurisdiction works.

[00:29:24] Speaker 04:
I mean, you may be able to prove a lack of jurisdiction after jurisdictional fact-finding, but isn't it basic civil procedure that the jurisdiction of a court is assessed on the allegations in a well-bred complaint?

[00:29:37] Speaker 00:
Yes.

[00:29:39] Speaker 00:
so premature to claim that a patentee, just by claiming that somebody has infringed their patent, is engaging in torsious interference with somebody's business because they're eligible.

[00:29:51] Speaker 04:
Well, how else would you suggest that the defendant get a torsious interference case in court, other than by filing a complaint with well-planned allegations suggesting that?

[00:30:08] Speaker 04:
You can dispute them.

[00:30:10] Speaker 04:
It sounds to me you're saying they haven't proved the merits yet, so the court doesn't have jurisdiction.

[00:30:16] Speaker 04:
But that's not the way jurisdiction works.

[00:30:19] Speaker 04:
You file a complaint.

[00:30:22] Speaker 04:
And again, hypothetically, because all we have is one letter here,

[00:30:25] Speaker 04:
But if we had a situation where your client had directed frivolous allegations of infringement into Tennessee, if the defendant resident Tennessee company had filed a complaint saying, we think these are frivolous allegations, they torturously interfere with our business, and there is jurisdiction here.

[00:30:47] Speaker 04:
Why wouldn't that establish personal jurisdiction?

[00:30:50] Speaker 04:
Because you had directed frivolous letters, at least on a well-fledged complaint, into the jurisdiction.

[00:30:58] Speaker 00:
Well, you're saying some very true things, but it was my understanding that sending an infringement letter, even if you're claiming two steps away that somehow that's going to interfere with your business, that that's in a privileged communication.

[00:31:14] Speaker 04:
That's a merit defense.

[00:31:16] Speaker 04:
It's not a jurisdictional defense.

[00:31:21] Speaker 00:
You mean in terms of the tortures and the transplants?

[00:31:23] Speaker 04:
Sure.

[00:31:23] Speaker 04:
It's a defense that our letters weren't

[00:31:26] Speaker 04:
torches interference because we're entitled to send letters alleging infringement and they were in good faith.

[00:31:33] Speaker 04:
It doesn't do anything to disrupt the personal jurisdiction of Tennessee if indeed the other side made well-pled allegations that they were subject to torches, interference, and claims of frivolous patent infringement.

[00:31:50] Speaker 00:
Well, Your Honor, even if we do have that premise, isn't that a state claim?

[00:31:56] Speaker 00:
that wouldn't qualify for federal court?

[00:32:01] Speaker 04:
I'm not here to answer your questions.

[00:32:04] Speaker 04:
I mean, is it a state claim without the court's jurisdiction or not?

[00:32:11] Speaker 00:
I believe it would not be within the jurisdiction of the court.

[00:32:16] Speaker 03:
We've suggested in various cases that the court would have jurisdiction over such a claim because in order to prevail,

[00:32:23] Speaker 03:
the court would have to decide a question of pan law and that the other criteria for subject matter jurisdiction were satisfied under those circumstances.

[00:32:36] Speaker 00:
Well, there have been Supreme Court cases such as Gunn v. Minton that have not gone along with this.

[00:32:43] Speaker 03:
Well, we've had cases in our court since Gunn v. Minton which have addressed this very question and suggested that there is subject matter jurisdiction.

[00:32:55] Speaker 00:
I accept that, Your Honor.

[00:32:58] Speaker 03:
Okay, well, unless there are other questions, I think.

[00:33:00] Speaker 03:
Okay, thank you.

[00:33:01] Speaker 03:
We're out of time here.

[00:33:14] Speaker 03:
Thank you.

[00:33:14] Speaker 03:
Okay, Mr. Bradford, you have a little over three minutes.

[00:33:18] Speaker 03:
Your Honor.

[00:33:19] Speaker 03:
What does the record show

[00:33:21] Speaker 03:
about the sending of letters similar to the one that's at 278 at the appendix.

[00:33:29] Speaker 03:
Does the record show that there were similar letters sent to entities in states other than Tennessee?

[00:33:40] Speaker 01:
There are allegations in the complaint that that happened.

[00:33:44] Speaker 01:
The actual copies of the letters are not in the record.

[00:33:46] Speaker 01:
But yes, there are allegations in Max Chief's amended complaint that letters were sent into other states.

[00:33:53] Speaker 03:
Does the complaint allege that there was more than one letter sent to Tennessee?

[00:34:03] Speaker 01:
It's my recollection that the letter was an attachment.

[00:34:10] Speaker 03:
To the complaint?

[00:34:11] Speaker 03:
Yes.

[00:34:12] Speaker 03:
But does the complaint allege that there were more letters sent to Tennessee?

[00:34:18] Speaker 01:
I don't believe.

[00:34:20] Speaker 01:
I believe it just allege that it's one into Tennessee.

[00:34:25] Speaker 01:
OK.

[00:34:28] Speaker 01:
But for example, in Silent Drive, the court said, at 1206, we have repeatedly held that the sending of infringement letters

[00:34:40] Speaker 01:
would satisfy the minimum context requirement of due process.

[00:34:45] Speaker 03:
No, no, no, no.

[00:34:47] Speaker 03:
That doesn't work, because rightly or wrongly, our cases have established the sending of infringement letters alone is not sufficient for declaratory judgment jurisdiction, for personal jurisdiction.

[00:35:00] Speaker 03:
Our questions relating to these letters

[00:35:04] Speaker 03:
have concern of tortious interference claim in personal jurisdiction over the tortious interference claim.

[00:35:11] Speaker 01:
Well, and I, and it's for those, there's policy considerations that, you know, you've allowed patent owners to provide people with notice of patents.

[00:35:20] Speaker 01:
But a lot of that has to do with promoting settlement and to avoid litigation.

[00:35:24] Speaker 01:
Here, they've sent letters in the jurisdiction

[00:35:27] Speaker 01:
And they have filed that are, we believe, baseless and subject to a tortures interference claim.

[00:35:35] Speaker 01:
And they've also filed a lawsuit requesting injunction against a distributor that's, as shown in their complaint, clearly distributed by MECA Corporation of Greenville, Tennessee.

[00:35:47] Speaker 01:
When you send letters into jurisdiction alleging infringement, you sue

[00:35:52] Speaker 01:
file a lawsuit that's focusing on a Greenville, Tennessee distributed table, I think you have to reasonably anticipate you can be held into court in Tennessee.

[00:36:02] Speaker 01:
If they wanted, what they should have done is they should have sued MECO where they could have, which was in Tennessee.

[00:36:09] Speaker 01:
And instead of trying to get MECO or someone on MECO's behalf to come in to California.

[00:36:16] Speaker 01:
So whenever they took this action, when they decided to sue a mere reseller,

[00:36:21] Speaker 01:
where the true defendant, again, under Nintendo and Cats, is Miko.

[00:36:26] Speaker 01:
And so it's just, it is fair and it is reasonable to ask, when they do that, they should be subject to a risk that they will be forced to go where they should have filed a suit in the first place, and that's in Tennessee.

[00:36:44] Speaker 01:
They have to reasonably anticipate being held there.

[00:36:47] Speaker 01:
They've expressly aimed an intentional activity, this lawsuit,

[00:36:52] Speaker 01:
at Greenville, Tennessee, distributed table.

[00:36:56] Speaker 03:
Okay, we're out of time.

[00:36:57] Speaker 03:
Thank you, Mr. Bradford.

[00:36:59] Speaker 03:
Thank you, Ms.

[00:37:00] Speaker 03:
Wright, in case it's submitted.

[00:37:07] Speaker 03:
Our next