[00:00:00] Speaker 00:
All right, our last case for argument is 23-1184, snap raise versus lighting defense group.

[00:00:06] Speaker 00:
Mr. Williams, please proceed.

[00:00:33] Speaker 03:
Good morning and may it please the court.

[00:00:34] Speaker 03:
Elliot Williams with my colleague Nathan Brunette of Stull Reeves on behalf of the plaintiff appellant Snap Power.

[00:00:41] Speaker 03:
I'd like to reserve five minutes for rebuttal.

[00:00:42] Speaker 03:
I want to highlight three points that will cover an argument from the outset.

[00:00:49] Speaker 03:
First point, Snap Power's Amazon listings reflect sales and marketing activities in the real world in Utah.

[00:00:59] Speaker 03:
Point two, the patentee's purpose

[00:01:02] Speaker 03:
And sending a patent infringement complaint to Amazon was to stop those Utah based sales activities and to get SNAP powers attention by doing so.

[00:01:11] Speaker 03:
Point three, this court's precedent protects patentees from remote personal jurisdiction and declaratory judgment actions when the patentees are sending cease and desist letters, but not

[00:01:27] Speaker 03:
when they're engaged in extrajudicial patent enforcement.

[00:01:30] Speaker 01:
But this is a triangular kind of case, isn't it?

[00:01:35] Speaker 01:
This is closer to Dudnikoff and Bancroft from the 9th and 10th Circuit, but those aren't binding.

[00:01:43] Speaker 01:
We don't have a binding case on your facts.

[00:01:48] Speaker 03:
That's correct, Your Honor.

[00:01:49] Speaker 03:
This case raises issues of fact.

[00:01:52] Speaker 03:
And the new technological context of an e-commerce enforcement

[00:01:56] Speaker 03:
this court hasn't directly considered before, and applying the constitutional test to these facts requires reversal.

[00:02:05] Speaker 03:
The patentee purposefully directed its takedown notice at a resident of the forum state.

[00:02:12] Speaker 03:
The takedown targeted only SnapPower, took aim at 20 of SnapPower's most valuable listings on Amazon, pulled the trigger,

[00:02:21] Speaker 03:
starting at three week clock after which Amazon would delete those listings in the corresponding sales and marketing activities in Utah.

[00:02:29] Speaker 00:
Do you think it matters at all?

[00:02:31] Speaker 00:
Because I noticed in the district court's opinion, they said, I think they said at one point that the patentee had no knowledge of where the alleged infringer was located, meaning no knowledge of the state of Utah.

[00:02:47] Speaker 00:
the fact that these activities were occurring in Utah.

[00:02:49] Speaker 00:
I'm wondering if the purposefully directed language has some sort of knowledge requirement.

[00:02:55] Speaker 03:
The district court got that wrong, and I'm glad you highlighted that, Your Honor.

[00:02:58] Speaker 03:
So the pleadings, which have to be taken as true, state that Lighting Defense Group, the Panty, did know that SNAP power was in Utah.

[00:03:07] Speaker 03:
And that has been discussed in the record, and the Panty has

[00:03:11] Speaker 03:
perhaps craftily avoided denying or admitting that fact.

[00:03:15] Speaker 03:
So the pleadings have to be taken as true lighting defense group, the patent he did know that SNAP power was in Utah.

[00:03:20] Speaker 03:
And to the extent that is not sufficient, perhaps, to be purposefully directing its activity at Utah.

[00:03:27] Speaker 03:
It is, I'm willing to concede, important, as your question suggests, Judge Moore, and that's why that information needs to be corrected in the decision below.

[00:03:39] Speaker 03:
And taking that into account, this action... That was weird, that allegation appears.

[00:03:45] Speaker 03:
Yes, it's appendix 16, and we find this issue on our brief, page 8, our opening brief.

[00:03:56] Speaker 00:
Appendix 16.

[00:03:57] Speaker 00:
Service number?

[00:03:58] Speaker 03:
10, right?

[00:03:59] Speaker 03:
Yeah, I believe it's 9 and 10.

[00:04:02] Speaker 03:
And then again, paragraph 20, perhaps.

[00:04:11] Speaker 03:
Defendant availed itself, paragraph 10, of the laws of the state of Utah and knew that its actions would harm SNAP power in this district.

[00:04:26] Speaker 03:
And I also will highlight that it appears from the facts, and these are also in the record, that in paragraph 20, which is appendix 20 of the district court complaint, that the patentee's purpose

[00:04:40] Speaker 03:
was to secure a monetary payment from SnapPower.

[00:04:45] Speaker 03:
The patentee hasn't accused any other party of infringing.

[00:04:48] Speaker 03:
It secured a covenant.

[00:04:49] Speaker 03:
It granted a covenant not to sue to Amazon.

[00:04:52] Speaker 03:
So there's no patent infringement allegations presented to Amazon.

[00:04:56] Speaker 03:
And when there were correspondence between the parties, the patentee offered to sell the patents, the entire portfolio to SnapPower.

[00:05:04] Speaker 03:
And so there's no other infringement targets in view other than SnapPower.

[00:05:12] Speaker 03:
So the district court erred by focusing its analysis on the physical endpoints of the transmission of the Amazon complaint from the patentee to Amazon.

[00:05:24] Speaker 03:
And this is where the sort of e-commerce aspect of this is important.

[00:05:30] Speaker 03:
The district court assigned the location of Washington to Amazon under the assumption that that's where its corporate headquarters are.

[00:05:38] Speaker 03:
But in truth, the communication was electronic.

[00:05:41] Speaker 03:
It went to the Amazon e-commerce platform and network with the express purpose of removing Snap Powers listings.

[00:05:49] Speaker 03:
And the district court erred by focusing on physical endpoints of that transmission instead of on who the complaint was targeting.

[00:05:56] Speaker 03:
The district court failed to consider the content.

[00:06:00] Speaker 03:
the meaning and the purpose of those infringement allegations, which were to stop Snap Powers' activities on Amazon and corresponding activities in Utah.

[00:06:08] Speaker 01:
Isn't personal jurisdiction all about location?

[00:06:12] Speaker 01:
Physical location.

[00:06:13] Speaker 03:
Well, that's what makes the e-commerce context so interesting.

[00:06:16] Speaker 03:
And in the Dunikoff case, which I understand is in binding on this court, is instructive in that it saw that the e-commerce activities had corresponding physical locations.

[00:06:29] Speaker 03:
And I'll quote from Dunikoff, the defendant's express aim and acting was to halt a Colorado based sale by a Colorado resident.

[00:06:39] Speaker 03:
The facts in that case involved a sales listing on eBay, very much like the Amazon listings at issue in this case.

[00:06:47] Speaker 03:
And the notice, the infringement notice in Dudnikov, was a transmission to eBay, like the transmission to Amazon in this case.

[00:06:55] Speaker 03:
And what's helpful in the Dudnikov analysis is that the court saw through all that, that the real target, the purposefully directed activity, was at the sales and marketing activity behind the internet listing on eBay.

[00:07:09] Speaker 03:
which were located in Colorado, just as SNAP hours sales and marketing activities are located in Utah.

[00:07:16] Speaker 03:
And the court continued in Dudnikoff, neither the lack of defendant's physical presence in Colorado nor the fact that they use a California-based entity, that is eBay in that case, to effectuate its purpose, diminish the fact that defendant's express aim was at a Colorado sale by a Colorado resident.

[00:07:39] Speaker 03:
I'd like to suggest an analogy that an Arizona resident who contracts with a Washington resident to construct a dam across a creek with the intention of flooding an Idaho farmer, so Idaho farmers on the Washington Idaho border, would never enter into Washington, would never enter into Idaho, but would certainly be subject to personal jurisdiction by a claim in Idaho by the Idaho farmer.

[00:08:08] Speaker 03:
that the Arizona resident had purposefully directed and intentionally harmed the Idaho farmers' crops.

[00:08:16] Speaker 03:
Similarly here, an Arizona resident contracting with a Washington person, in this case, Amazon, to construct a dam in the stream of commerce that's directed to harm a Utah resident should give rise to personal jurisdiction and certainly satisfies the purposefully directed aspect of the minimum contacts test.

[00:08:41] Speaker 03:
A failure to reverse would protect patent owners from declaratory judgment actions when enforcing online through e-commerce marketplaces, which would be a policy akin to this court's Red Wing Shoe Policy, protecting patent owners in the context of sending cease and desist letters, but would go beyond the Red Wing Shoe Policy and extend that policy to an area that this court has

[00:09:11] Speaker 03:
for a long time distinguished, mainly extending from two-party communications that could support settlement to third-party communications to enforce the patent outside of court.

[00:09:27] Speaker 03:
This court should reverse to prevent such an extension of protection, and reversal is also necessary to maintain the status quo.

[00:09:34] Speaker 03:
There's subtle expectations in patentee enforcement activities under

[00:09:40] Speaker 03:
Congress's rule, the patent-bending statute.

[00:09:43] Speaker 00:
Just so I know from a practical standpoint, under the APEX program, right now your client is allowed to continue selling on Amazon because this litigation is ongoing.

[00:09:55] Speaker 00:
Is that correct?

[00:09:56] Speaker 03:
So currently, and I haven't heard otherwise, Amazon has allowed the listings to remain online while this case is pending.

[00:10:05] Speaker 03:
Amazon could change its mind at any time, but as far as I know, they have not.

[00:10:09] Speaker 03:
The listings are online.

[00:10:10] Speaker 00:
Well, the APEX program expressly articulates the contours of it.

[00:10:14] Speaker 00:
I mean, theoretically, Amazon could change its program.

[00:10:17] Speaker 00:
Under the program as articulated, they're allowed to keep selling during the pendency of this case, correct?

[00:10:24] Speaker 03:
That's correct, Your Honor.

[00:10:29] Speaker 03:
The TC Heartland decision settles expectations that patentees have to bring their infringement claims in the federal courts

[00:10:37] Speaker 03:
where the infringer resides and where the infringement occurs.

[00:10:41] Speaker 03:
Thus, it is not unfair to require Lightning Defense Group to do the same.

[00:10:44] Speaker 03:
The district court's decision enables patent owners to do an end run around the patent venue statute by provoking an infringement contest in court through the e-commerce marketplace.

[00:10:58] Speaker 01:
Well, what you're asking for might be regarded as an end run too.

[00:11:03] Speaker 03:
But it's consistent with the rule for the federal courts, and so it's not unfair to the patent owner.

[00:11:11] Speaker 03:
If there are no further questions, I will reserve my time for rebuttal.

[00:11:43] Speaker 04:
Thank you, Chief Coach Moore.

[00:11:45] Speaker 04:
May it please the court.

[00:11:47] Speaker 04:
Snap Power offers an overly narrow framing of this appeal, calling it an issue of first impression.

[00:11:54] Speaker 04:
It is not.

[00:11:55] Speaker 04:
There's nothing novel about this appeal.

[00:11:58] Speaker 04:
You mean because of the Ninth and Tenth Circuit's decisions?

[00:12:02] Speaker 04:
Oh, I mean because of

[00:12:04] Speaker 04:
The relief that SNAP power is seeking is being foreclosed by precedent in Walden, Avison, Radio Systems, and Max Chief.

[00:12:14] Speaker 02:
And as we just heard from Chief Judge... Those cases didn't involve a program like the APEX program, right?

[00:12:20] Speaker 04:
They did not, Judge Dyke.

[00:12:21] Speaker 04:
You are correct.

[00:12:22] Speaker 02:
Does that make a difference?

[00:12:24] Speaker 04:
I don't believe it does, and I believe that is a...

[00:12:27] Speaker 04:
That is why I view SNAP Power's narrow framing, it's overly narrow, because I don't think that the e-commerce program makes any difference at all on this issue.

[00:12:41] Speaker 04:
The Supreme Court made clear in Walden that minimum contacts for specific personal jurisdiction must be created by the defendant themselves, by actions that the defendant himself has.

[00:12:55] Speaker 04:
And those contacts must be with the forum state, not with the persons who reside there.

[00:13:01] Speaker 04:
So Walden reversed the Ninth Circuit's finding, finding specific personal jurisdiction.

[00:13:08] Speaker 04:
And notably, that Ninth Circuit case that was reversed based its reasoning on the Bancroft and Dudnikov decisions.

[00:13:17] Speaker 04:
those decisions that are key necessary for snap powers position.

[00:13:21] Speaker 02:
So if we were in the ninth to tenth circuits, do you agree that you'd lose?

[00:13:27] Speaker 04:
I do not, your honor.

[00:13:28] Speaker 04:
Why not?

[00:13:28] Speaker 04:
I think that subsequent decisions in the ninth circuit, at least other circuits, and forgive me for not recalling which specific circuits, have distinguished

[00:13:42] Speaker 04:
Dudenikoff, I believe.

[00:13:44] Speaker 02:
But let's assume that Dudenikoff, and I forget the name of the Ninth Circuit case, were governing authority.

[00:13:51] Speaker 02:
You'd lose under those cases, right?

[00:13:53] Speaker 04:
As they have been applied subsequent to that, I don't think that I would.

[00:13:57] Speaker 04:
And I understand why you're saying that, Judge Dyke.

[00:14:00] Speaker 04:
But subsequently in those circuits that have been looking at Dudenikoff and would be following Dudenikoff,

[00:14:06] Speaker 04:
uh... they have read it subsequently and i believe even so that following walden specifically that there must be a specific sale has been prevented within the form state in order for that didn't call it a bank shot analogy can you help me understand what case you're talking about i'm not sure i'm following this i don't remember this argument that we are uh... we have on page uh... forty seven of our

[00:14:35] Speaker 04:
response brief.

[00:14:39] Speaker 04:
Note seven, I believe.

[00:14:53] Speaker 04:
That numerous courts have found Dudnikoff in opposite for the same reasons as we explain.

[00:14:58] Speaker 04:
And so I'm looking quickly through here and I apologize for not having these.

[00:15:02] Speaker 04:
These are

[00:15:03] Speaker 04:
And I misspoke.

[00:15:05] Speaker 04:
There's only one 10th Circuit case in here, and that would relate to Dudnikov.

[00:15:11] Speaker 04:
But the courts have distinguished Dudnikov in requiring a specific sale that was foreclosed in the foreign district, and that's what happened in Dudnikov.

[00:15:22] Speaker 02:
They alleged that lots of sales were prevented from happening.

[00:15:26] Speaker 04:
knows and and respectfully judge date no sales were actually prevented from happening there was certainly a threat and the threat was created from the what event if if the apex program or fall that would have been taken off the website and sales would have been prevented right not necessarily your honor because the apex program is is distinguishable also from the ebay program in dudekoff where the ebay program when there is a notice of of infringement

[00:15:56] Speaker 04:
ascent, there was an automatic take down.

[00:15:58] Speaker 04:
Now I understand that SNAP Power has tried to characterize the APEX program.

[00:16:01] Speaker 02:
I'm not understanding what you're saying.

[00:16:03] Speaker 02:
I've read the APEX program that says you have a couple options if you don't participate in this arbitration or whatever you want to call it, and you don't bring a declaratory judgment action, your product's going to be taken off the website, right?

[00:16:20] Speaker 04:
Yes, it does, your honor.

[00:16:21] Speaker 04:
I think that's an important distinction.

[00:16:23] Speaker 02:
Okay, so if they don't want to participate,

[00:16:25] Speaker 02:
in the Apex program and their only option then is to file a declaratory judgment action.

[00:16:31] Speaker 02:
If they can't file a declaratory judgment action, their product's taken off the website, right?

[00:16:35] Speaker 04:
I would say respectfully, and to answer your question directly, yes.

[00:16:38] Speaker 04:
If they do not participate, their product would be delisted.

[00:16:43] Speaker 04:
There are a couple of important aspects on this too, Your Honor.

[00:16:46] Speaker 04:
First is, as a condition of being an Amazon seller, SnapPower had agreed to participate and be subject to the APEX process.

[00:16:55] Speaker 02:
This is a... Well, that doesn't mean they have to participate in the arbitration part of it, which in fact only is an infringement and not in validity.

[00:17:05] Speaker 04:
Well, and respectfully, Your Honor, I think that that would be a decision to be made prior to deciding to list products on Amazon.

[00:17:13] Speaker 00:
No, Amazon expressly gave them three alternatives.

[00:17:16] Speaker 00:
They are participating in the Apex program by filing a DJ.

[00:17:20] Speaker 00:
That was one of the three options Apex expressly gave them.

[00:17:24] Speaker 00:
They have not failed to participate in the Apex program.

[00:17:27] Speaker 00:
In fact, participated and done exactly one of the things that it allowed.

[00:17:32] Speaker 04:
And certainly the Apex program allows that, your honor.

[00:17:35] Speaker 04:
However, and I think that SnapPower has

[00:17:39] Speaker 04:
characterize it in this way itself, that failure to participate in the APEX program, and that is, as Judge Dyck said, the arbitration process, the private arbitration process that Amazon runs for efficiency.

[00:17:54] Speaker 04:
that this court, I think, as a policy measure would favor, and the federal courts do favor arbitration.

[00:18:00] Speaker 02:
So we should punish them for not agreeing to the arbitration aspect of this?

[00:18:04] Speaker 04:
I don't think this is a punishment at all, Your Honor.

[00:18:06] Speaker 04:
I think this is.

[00:18:07] Speaker 02:
You should say they don't have a remedy because they didn't participate in that aspect of the program.

[00:18:14] Speaker 04:
And I'm sorry to say that again.

[00:18:16] Speaker 02:
You're saying that as a policy matter, we should say they can't get relief because they didn't participate in the arbitration aspect of the APEX program.

[00:18:24] Speaker 04:
I see.

[00:18:25] Speaker 04:
And yes, I think that as a policy matter, that there should be a policy as there is in the Arbitration Act to promote private resolution of disputes, there is a policy to not override

[00:18:45] Speaker 04:
private arbitration now to be clear but we're not overriding word warrants the the program apex program as such you could more said gives them three choices they chose one of which is uh... start a declaratory judgment and they did your honor and they could just start a declaratory judgment on action where there is personal jurisdiction and that is the case here there is no dispute that they could start a declaratory judgment action

[00:19:11] Speaker 04:
That action would be started in, say, Arizona, where lighting defense is resident, or in, I think more appropriately in this case, the state of Washington, where the action was taken.

[00:19:26] Speaker 04:
To be clear, this arbitration process, the APEX process, even if the Amazon listings are taken down, does not leave snap power high and dry as would a court ruling.

[00:19:39] Speaker 04:
This does not have anywhere close to the same power as a court ruling in determining infringement.

[00:19:43] Speaker 00:
I don't understand why you think that has any relevance.

[00:19:46] Speaker 00:
If I take purposeful direction at you and prohibit some of your sales, but not all of them, somehow that's not personal jurisdiction?

[00:19:54] Speaker 00:
I don't understand that argument at all.

[00:19:57] Speaker 04:
In this instance, the purposeful direction was to the state of Washington, your honor, not to Utah.

[00:20:02] Speaker 00:
Well, your argument just now was it didn't prevent all of their sales.

[00:20:06] Speaker 00:
It only presented their Amazon sales.

[00:20:08] Speaker 00:
That's right.

[00:20:08] Speaker 00:
If a patentee goes after an infringer to prevent some of their sales, that's a problem.

[00:20:15] Speaker 00:
It's not some versus all that is the concern.

[00:20:18] Speaker 04:
And some of their sales through Amazon, that's the process that Amazon set up to help it avoid

[00:20:25] Speaker 02:
infringement actions to be clear the amazon process is not beaten being done as a favor to anybody in mind that looks at the fact is that your client contacted Amazon with the idea of causing Amazon to take their product off the website correct there's no question about that

[00:20:45] Speaker 04:
that's right your honor there's no question about that and the only way that that could be viewed as reaching into the only way that can be viewed as reaching into utah would be through how snap power construes in this case using dudnicoff and bangcroft dudnicoff and bangcroft had been expressly um... expressly rejected by this court in radio systems and then following on in another now i guess situation with the max chief case

[00:21:15] Speaker 04:
uh... i think that your honor they are very very closely analogous where in radio systems the patentee reached out to the patent trademark office in virginia with the specific intent of causing the the accused infringers forum in that case i believe it was tennessee to take action against the patent

[00:21:41] Speaker 04:
And this court held that that is not reaching into specifically because this court rejected Dudnikov and Bancroft.

[00:21:49] Speaker 04:
So the fact that the Amazon process happens to be electronic and the USPTO, it does not happen to be electronic.

[00:21:59] Speaker 04:
I don't see any distinction, your honor.

[00:22:01] Speaker 04:
It is a three-party arrangement.

[00:22:07] Speaker 04:
The only way that lighting defenses reach to Amazon could be construed as reaching into Utah would be through a bank shot, just like in radio systems.

[00:22:21] Speaker 04:
And in radio systems, this court rejected expressly the bank shot approach.

[00:22:26] Speaker 04:
As Judge Moore said in the previous case this morning, precedent matters.

[00:22:30] Speaker 04:
Similarly, in Max Chief, there was a

[00:22:35] Speaker 04:
I believe a case filed in California where it was very foreseeable that the, um, accused infringer would be have an effects going to Tennessee.

[00:22:47] Speaker 04:
There was a three party arrangement there.

[00:22:49] Speaker 04:
And yet that was not enough.

[00:22:51] Speaker 04:
And then that case, this court relied on Walden, which we believe also supports our position to reject this idea of a indirect reaching into a forum.

[00:23:05] Speaker 04:
So based on the reasoning in Walden, then, Max Chief re-emphasized that is not enough for personal jurisdiction, that the patent enforcement actions might have effects in the forum.

[00:23:19] Speaker 04:
I believe this court said in Max Chief, rather, jurisdiction must be based on intentional conduct by the defendant directed at the forum.

[00:23:26] Speaker 04:
And here is the issue here.

[00:23:29] Speaker 04:
that LBG, Lighting Defenses Conduct, was not directed at the forum.

[00:23:33] Speaker 04:
It was directed at Washington State.

[00:23:36] Speaker 04:
This is no different than a bank shot that Dudenkoff used that this court rejected in radio systems.

[00:23:42] Speaker 04:
I see no distinction, respectfully, Your Honor, between having a bank shot run through Amazon as an electronic program and a bank shot run through the U.S.

[00:23:56] Speaker 04:
Patent and Trademark Office in Virginia.

[00:23:58] Speaker 02:
How was the Patent Office preventing sales in the Forum State?

[00:24:06] Speaker 04:
Well, the Patent Office was affecting the rights in the Forum State.

[00:24:10] Speaker 04:
And there is no... It wasn't directly affecting any sales, right?

[00:24:13] Speaker 02:
No, and there is no... The sales here, Your Honor... Yes, it wasn't directly affecting sales.

[00:24:19] Speaker 04:
No, I'm sorry, no, no, the Patent Office would have no effect on sales that Patent Office is ruling.

[00:24:25] Speaker 04:
In this instance, there is nothing in the record suggesting that there would be a direct effect on sales or that any sales had been lost.

[00:24:34] Speaker 04:
There is in Appendix 144, a declaration from the, from Snap Power saying that their sales are fulfilled in Utah and that their Amazon listings are posted.

[00:24:49] Speaker 04:
from an office in Utah.

[00:24:52] Speaker 04:
What is missing, and I think this is important, is that sales are not in Utah.

[00:24:59] Speaker 04:
I believe that it's not in the record, but my assumption for the lack of this portion in the declaration from SnapPower is that

[00:25:08] Speaker 04:
as would be common with Amazon's operations, the sales would be executed through the state of Washington.

[00:25:15] Speaker 04:
And that's where the sales would be blocked.

[00:25:17] Speaker 00:
I'm having trouble understanding that argument.

[00:25:19] Speaker 00:
Can you explain it to me?

[00:25:20] Speaker 00:
I mean, if the inventor is making the product in Utah and shipping it out of Utah, how is that not enough?

[00:25:27] Speaker 04:
The sales are being consummated, is my understanding.

[00:25:32] Speaker 04:
It's not in the record, Your Honor.

[00:25:34] Speaker 04:
And so I'm out on a limb here.

[00:25:36] Speaker 00:
Who cares?

[00:25:37] Speaker 00:
Who cares where the sales are consummated?

[00:25:39] Speaker 00:
The product is made in Utah and shipped from Utah to the ultimate purchaser.

[00:25:44] Speaker 00:
So the seller is in Utah.

[00:25:47] Speaker 00:
So who cares?

[00:25:48] Speaker 00:
Why isn't that enough for personal jurisdiction?

[00:25:50] Speaker 00:
Who cares where the sale itself took place, where the contract was signed?

[00:25:58] Speaker 04:
with a contract well i i think that max chief comes down on on the point of that's where where the effects on doesn't matter where the ultimate effects of the action take place in max chief is straight on this point it has to be reaching into the forum state but that's no respect what i see happening here you are reaching into the state of utah

[00:26:21] Speaker 00:
to prevent sales from being fulfilled by a Utah company in the state of Utah.

[00:26:30] Speaker 00:
That's it.

[00:26:30] Speaker 04:
Respectfully, Your Honor, I disagree that SNAP Power is reaching into the state of Washington.

[00:26:36] Speaker 04:
And the only way that can be construed as reaching into Utah is with a bank shot.

[00:26:41] Speaker 04:
And this court has rejected bank shot.

[00:26:45] Speaker 00:
OK.

[00:26:45] Speaker 00:
Thank you very much.

[00:26:47] Speaker 00:
We have some rebuttal time, please, Mr. Williams.

[00:27:08] Speaker 03:
Thank you, Your Honor.

[00:27:09] Speaker 03:
I just want to touch on a couple of points in response to Mr. Andrews.

[00:27:14] Speaker 03:
First, he referenced the Walden case.

[00:27:17] Speaker 03:
I think that case is distinguishable.

[00:27:18] Speaker 03:
It's from the Supreme Court, but it addressed an individual defendant acting in the line of duty as a police officer in Georgia.

[00:27:27] Speaker 03:
And in that case, jurisdiction over the Georgia defendant in Nevada

[00:27:33] Speaker 03:
would have been unreasonable and unfair to hail a Georgia individual police officer into the state of Nevada when he was doing law enforcement in Georgia and the plaintiffs were in Georgia.

[00:27:45] Speaker 01:
Have we rejected the bank shot theory?

[00:27:47] Speaker 01:
No, Your Honor.

[00:27:50] Speaker 01:
But your opposing counsel stated it expressly.

[00:27:54] Speaker 01:
You might want to address that.

[00:27:55] Speaker 03:
Absolutely, Your Honor.

[00:27:56] Speaker 03:
So the radio systems case, which there was some discussion about it.

[00:28:00] Speaker 03:
So I'll try to pick up where that left off.

[00:28:02] Speaker 01:
And Max Field.

[00:28:03] Speaker 03:
And Max Chief, certainly.

[00:28:04] Speaker 03:
Max Chief.

[00:28:05] Speaker 03:
So in radio systems, there was this statement by this court associated with rejecting the patentee's contact with the forum state

[00:28:17] Speaker 03:
around the conduct of contacting the USPTO examiner for the alleged infringer's patent application, which has no connection to the alleged infringer's sales.

[00:28:31] Speaker 03:
There's no stopping of sales activity or stopping of any alleged infringement in that context.

[00:28:38] Speaker 03:
It's simply trying to bother the infringer.

[00:28:41] Speaker 00:
It might be a cautious interference with business concept, but it has nothing to do with enforcement efforts related to a patent.

[00:28:47] Speaker 03:
Exactly.

[00:28:48] Speaker 00:
Okay.

[00:28:49] Speaker 00:
How about Max Chief?

[00:28:50] Speaker 03:
Max Chief involved a patent assertion action in California against Staples, and one of the downstream distributors, or maybe it was upstream, someone else in the stream of commerce related to Staples, was in Tennessee.

[00:29:03] Speaker 03:
And they thought they would be covered by any injunction that issued from the California court, and so they sued preemptively.

[00:29:09] Speaker 03:
And the court said,

[00:29:10] Speaker 03:
The patent owner hasn't targeted you.

[00:29:12] Speaker 03:
And that was true.

[00:29:12] Speaker 03:
The patent owner had never named them, had never sent them a letter, had never gone after them.

[00:29:16] Speaker 03:
It was simply an incidental effect of whatever injunction might arise from the California litigation.

[00:29:23] Speaker 03:
And that's not this case because Lightning Defense Group only targeted Sam Power.

[00:29:29] Speaker 03:
Absent any further questions, Your Honor, I will return my time to the court.

[00:29:34] Speaker 00:
Okay.

[00:29:34] Speaker 00:
I thank both counsel.

[00:29:35] Speaker 00:
This case is taken under submission.