My check, one, two, my check, two, three, four. Four attorneys are the five cases on today's list. The court, particularly this panel, wishes to acknowledge the birthday of our esteemed colleague, Judge Daniel M. Friedman, seated to my right, who today becomes 90. Happy birthday, quick Friedman. Thank you. We won't sing, but we all will aspire to match his record. As the cases are five, two are being submitted today on the brief, namely appeal number 05-3216, Menare's versus Office of Personnel Management, and appeal number 05-3331, solar versus Department of Treasury. On the three case argument list, we'll hear argument first in appeal number 05-1221, wreck and ridge, pharma versus metabolites. Mr. Hershey, good morning. Welcome to your honor. Please proceed. You want to get a call? Your honor, my pleasure, five minutes for a bottle. Very well. When the yellow light goes on, you're beginning to consume those five
. Thank you, your honor. Robert Hershey's four, wreck and ridge from the pseudogol, and we've been in the police for fucking individuals and barrows, also on the brief, and Mr. Jean can general counsel for wreck and ridge. The issue that we have before us today is whether the district court aired in dismissing our case for a lack of a personal jurisdiction. And the reason they committed that era, but because of misconstrued, we believe the letters that were sent out, which it turned as a cease and cease letter, and say, therefore, using federal patent law, it's exempt. I understand the heart of your case to be that the letters in this case, rather than being categorized as typical of what can fairly be called cease and desist letters, actually are more in the nature of promotional letters or offers of sale as was the case in 3D services. Exactly, you're wrong. So you say this is like 3D services, therefore, under that case, we have to win. Yes, your honor, because just for the fact that let's compare the facts of 3D services then with the facts here. What did the letter here say? The letter here said we want you to know there. We're out there with a product that what the product is used for, that is protected by a patent, but didn't disclose that in fact the patent only covers treatment, a method of treatment for a specific disease. So, so far, it sounds like a cease and desist letter. What is it that's in the letter that you point to that makes it not a cease and desist letter? It was the purpose of it, it was sent out for a permit. The purpose would be the state of the mind of the center. I'm asking what the letter says that you would rely on
. The letter says that the letter cannot be properly called a cease and desist letter. It does not say you're a potential infringer, it does not say that you conduct your... Well, maybe it was badly written. Maybe it could have said more or said it more strongly, but that doesn't seem to be the point. It seems like the distinction is between an offer of sale as was the case in 3D system versus a threat phrase somehow that you might be sued because we have a patent. Well, the tenor of the letter is exactly that of an offer of sale with sales literature saying that you should use it. Does the letter quote traces or quantities or delivery dates or anything like that? It attaches the literature of Pamela, who is the actual supplier of the product. Well, I think you should answer the question that's asked. Does the letter or what accompanied it have price quotes or quantities or delivery dates? No, it's not an invoice, Your Honor. It doesn't give detail of that nature, but it gives food to get the product from. It tells where the source is, it gives the literature for promotional literature for Pamela. And it's admitted by the author. Well, it could
. Good, that's good. So, the recipient of the letter, consumates a contract by replying to the letter and saying, yes, I accept the offer. No, Your Honor. Well, it is, it's in that case, it's a distinction in 3D that if the communications constituted offer that could be accepted and thereby create a binding contract, then it's in the category of promotional sale documents not piece into sysplur. Isn't that the key distinction in the case law? I don't believe that, Your Honor, because you could have solicitation without having an offer for purchase. I may have to make that a better. I'm asking about the 3D services case. It seems to me if you can't get around, if you can't show that you're under that case, you can't win. So, I'm kind of, kind of have you compare your case to 3D? Well, Your Honor, I believe we can win because even if you determined that it was a season assist but it was in bad faith, we would be at least entitled to the evidentiary portion of seeing whether or not on the bloke charter, you, how we are entitled to see whether or not this letter should be construed as a bad faith letter. In essence, a casting of a net that's too far to include not people who are non-marriageing. When you say a bad faith letter, do you mean that the sender of the letter of the company had no real belief that there was an infringement? Absolutely, Your Honor. They didn't because they sent it to the public's supermarket which cannot possibly in any shape or form of imagination be treating hyper-homestinely a condition. That would not occur. So, they knew when they sent it, they were sending it to people who could not infringe that patent, who were maybe using a product which they also knew because only three weeks before we were in the district of Colorado, for where the issue came out that can there be a non-infringing product? And the answer is yes, with the same exact formulation. Why? Because to get their patent protection in November of 1993, a long history here, they carved out any treatment for vitamin deficiency using exactly that type of formula
. But if your position is that this is not a cease and desist letter, this is a promotional letter, then why is this discussion about bad faith relevance? Whether it's a cease and desist, put even out in bad faith or a promotional letter that is torsious and causes a tort, either way is actionable. Because the exception that's carved out, and there is an exception that's carved out, written in shoe that you give an exception for good faith, and that's important. So, good faith noticed a potential infringers. Is there a finding here of bad faith? Your honor, it's never disputed because it's an emotion to dismiss and we believe that that's what the court aired in its saying we're not entitled to have a good faith. I would be very helpful to the court if you would answer the questions responsibly. What's there a finding by the district judge of bad faith? No, there was not your honor. So, when you talk about bad faith, you're just talking about your personal opinion. No, that was as pleaded in the pleadings. We pleaded it's not been disputed factually in no affidavit, in no response, and therefore as a pleading issue, that issue was raised and we should have been entitled to go forward. What the court did was having... Well, what evidence of bad faith was submitted? Your honor, what was submitted with the pleading and the facts and circumstances of how that letter arrived. I'm asking whether the allegation and the complaint was supported by any evidentiary materials like affidavit. Not at that level, your honor, because this was an emotion to dismiss and it's not as a result of a judgment
. Yes, your honor. But it was never disputed. The bad faith was... Are you suggesting that opposing counsel has conceded that his client was acting in bad faith when transmitting the letter? That hardly seems to be the case. If that was his position, he wouldn't be defending the district court. He would be agreeing with you that the case has to go back. I understand, your honor, but in fact... Well, it was showing you that it's not subcutaneous. He doesn't contest it. It seems to me that can't be accurate because if he weren't contesting it, he wouldn't be here. He argues that, yes, your honor
. But he has not submitted anything to submit that allegation, in fact, factually wrong. But you, as a matter of fact, gather and answer the judgment, Jill's question. You submitted another to support your claim of bad faith. I mean, is it enough just to say they're showing us we're infringing, but it's in bad faith. Let's take a normal case, humanifactoring something, and someone else shows you saying you're infringing our patent of this product, and you just put it in an answer saying the student's bought in bad faith. It's not enough to entirely get a hearing without something more. And he comes back and submits an affidavit from the president of the company saying, this is in good faith. We have every reason to believe that these people are infringing our patent. Here's what our patent of Sonsa, and this is their product. In fact, your honor, it wasn't an affidavit that's in good faith. It was never disputed. That allegation, even to us, we stayed here today, was never actually disputed, or an in affidavit or response. Well, it was never disputed. I tell you all in the sense that they didn't file an answer, they moved to dismiss. They moved to dismiss on the basis of an absolute exception saying that whether or not, once they give notice of the patent, it falls under an exception, and whether or not it's in bad faith or not, we're basically exempt
. They actually said whether or not we're in good faith or bad faith, they actually said that in their honor. Well, then don't say something that isn't what the document contains. The document contains the argument that regardless of whether it's a cease-nessist letter, or even not a cease-nessist letter, whatever it is, that in fact, it would be non-actionable, or you could not get jurisdiction. And that's what we dispute. But it doesn't say anything about bad faith. It does not address per se. Your honor, I'm into my repudal time. All right, why don't you go ahead and say that Mr. Prishis, thank you very much. We're here now from Mr. Beady. Welcome. Good morning. Please proceed. Mr
. Beady. If you please, the Court, we did not admit that the letter was in bad faith. In fact, there was a finding by the district court. In fact, the letter was not in bad faith. On the page 822 of the appendix, the district court stated about a third of the way down. There is no dispute that plaintiff sells a product that can constitute infringing activity. So indeed, the letters were a good faith, not only that, but the district court so far. With respect to the controlling bond, the circuit, I think, that would be great. Let me ask you about facts before we get into abstract legal proposition. I understood the opposing counsel to suggest that the brochure, which I understand the company, the letter, contain the promotional type or sales type material. Do we have that accompanying brochure in the record here? I do not believe that brochure is in New York. So would it be your position then that we would not be authorized to be depending on anything that document may contain? I do not think it would be fair to rely on a document that is not in the record to establish, for example, that there was an offer to sell. Was it in the record below? I do not believe it was in the record below as an error of fact. The letter itself was how long? Remind me about the letter. The letter itself is on 761 of the appendix
. It was a page and a quarter. I had asked counsel whether it contains price quotes or delivery schedules or quantities available or other sales type or offer to sell materials. I gather that he said no. No, nothing of the sort. It did contain this brochure but for a specific purpose, as counsel has indicated, the patents and issue are method patents for a method of treating certain medical conditions. So the drug chains would be what contributory infringers potentially? That is correct. Contributory. Obviously they do not make the product. The point of including the brochures was to show that the licensee of the patent was selling the product for this specific patenting purpose. In other words, you can't continue to buy it from your present vendor because that would have implicated you along with others in infringement. But here is an alternative. You can get the same substance for a use in this method from a more proper tool. We did go quite that far. If you want to read into the letter of allegation of infringement and I think that does require some reading into the letter. But assume that for a moment
. Then yes, I think that your characterization is fair. We would be saying that if you can screw this to be infringing activity, here is an alternative. But we acknowledge that it wasn't necessarily infringing activity. That is why we didn't make an allegation of infringement. The only suggestion we made and I quote is that we would urge you to consult with your patent attorney. Now conceivably, I suppose it's not a record, but conceivably there could be uses of this particular formulation that are not covered by this particular method patent. That's why we urge them to consult with their patent attorney to explore that issue. Did they ever respond to the one? I don't believe that these particular recipients who explored it responded. There were three. There was three of four. So one letter to each of three recipients in the state of Florida, no response. That's correct. Mr. Beaton, the letters certainly identified the patent and described what the patent covered and identified the licensed product. Not only describing the product, but also attaching these promotional materials or descriptive materials, shall we say? Yes, that's right. And the... I mean, can't these letters be read as a form of solicitation of some sort? And isn't that what the district court somehow? The district court did conclude that these were a form of solicitation of some sort. And it goes to the question of whether this meets the Florida long-larks. That's right. Now, having said that the district court concluded it was a solicitation of some sort, that doesn't get the plaintiff home free here. Because, of course, for there to be personal jurisdiction, the situation has to not offend notions of fair play. The district court went on to conclude it under red wing. It would have been notions of fair play because at the court, the letters were at most deceased and deceased letter. And I think better characterized as a letter suggested that people could solve the patent's case. But isn't this case more like Acro and Dunedic implants and red wing or celebrating? No, I think in Acro and I think that Judge Michelle wrote the Acro opinion, if I recall, the licensee in that case was actually a resident of the forum. And so there were very strong contacts between the declaratory judgment-dependent IE the patentee and forum by virtue of this core license agreement with the resident of the forum. What's the distinction with regard to the other three cases scheduled in the same? Yeah. And Dunedic implants, the licensee was not a resident
. And the... I mean, can't these letters be read as a form of solicitation of some sort? And isn't that what the district court somehow? The district court did conclude that these were a form of solicitation of some sort. And it goes to the question of whether this meets the Florida long-larks. That's right. Now, having said that the district court concluded it was a solicitation of some sort, that doesn't get the plaintiff home free here. Because, of course, for there to be personal jurisdiction, the situation has to not offend notions of fair play. The district court went on to conclude it under red wing. It would have been notions of fair play because at the court, the letters were at most deceased and deceased letter. And I think better characterized as a letter suggested that people could solve the patent's case. But isn't this case more like Acro and Dunedic implants and red wing or celebrating? No, I think in Acro and I think that Judge Michelle wrote the Acro opinion, if I recall, the licensee in that case was actually a resident of the forum. And so there were very strong contacts between the declaratory judgment-dependent IE the patentee and forum by virtue of this core license agreement with the resident of the forum. What's the distinction with regard to the other three cases scheduled in the same? Yeah. And Dunedic implants, the licensee was not a resident. I don't have Dunedic implant in front of me, but I think the key to this case is that there's simply no contacts with the forum. Whatever aside from these particular three letters? Well, they're not alleging any other contacts. They're saying the letters on their face are enough. So we're trying to figure out, can that be right or not? And it depends on how these letters compare with counterpart letters and other cases. So, the synomy, the decilin, the challenge to you to draw the distinction between your facts and each of the precedents is quite fast and important. Well, I think that the key case is going to be the red wing case, which very specifically holds that there can't be personal jurisdiction found solely on the sending of cease and desist letters. These fall short of cease and desist letters, but even cease and desist letters. And either coupled with a solicitation in the form of an offer to license, here there's not even an offer to license. This is a bit, isn't this really basically what the court said in red wings that a patent he has the right to inform people about its patent and that it believes there may be infringement? And that's what you're doing is that as I read this letter, what you're doing is you're saying to these people, look, there may be a problem with these generic drugs. And before you substitute a generic prescription for a prescription for the patent and product, check with your lawyer. As I understand it, as far as solicitation is concerned, this is solicitation only in the sense that if they stop selling the generic products presumably they will then start selling more of your product. I exactly right, except for the very last part, which is they couldn't sell more of our products as you put it because they were actually a licensee's products. That was your exclusive license. Exclusive with respect to this formulation, right? It doesn't that make a difference. That does make a difference, but still the point that I wanted to make is that there's no offer to sell here because metallic is patent-tee who's not in the business of selling anything at all
. I don't have Dunedic implant in front of me, but I think the key to this case is that there's simply no contacts with the forum. Whatever aside from these particular three letters? Well, they're not alleging any other contacts. They're saying the letters on their face are enough. So we're trying to figure out, can that be right or not? And it depends on how these letters compare with counterpart letters and other cases. So, the synomy, the decilin, the challenge to you to draw the distinction between your facts and each of the precedents is quite fast and important. Well, I think that the key case is going to be the red wing case, which very specifically holds that there can't be personal jurisdiction found solely on the sending of cease and desist letters. These fall short of cease and desist letters, but even cease and desist letters. And either coupled with a solicitation in the form of an offer to license, here there's not even an offer to license. This is a bit, isn't this really basically what the court said in red wings that a patent he has the right to inform people about its patent and that it believes there may be infringement? And that's what you're doing is that as I read this letter, what you're doing is you're saying to these people, look, there may be a problem with these generic drugs. And before you substitute a generic prescription for a prescription for the patent and product, check with your lawyer. As I understand it, as far as solicitation is concerned, this is solicitation only in the sense that if they stop selling the generic products presumably they will then start selling more of your product. I exactly right, except for the very last part, which is they couldn't sell more of our products as you put it because they were actually a licensee's products. That was your exclusive license. Exclusive with respect to this formulation, right? It doesn't that make a difference. That does make a difference, but still the point that I wanted to make is that there's no offer to sell here because metallic is patent-tee who's not in the business of selling anything at all. Right, but there's a suggestion that the exclusive licensee of your client, the patent-tee, should now become the source of the product that these drug chain stores would sell. I think that you can functionally, why isn't that the same as the circumstance where a patent-tee who also manufactures would threaten to sue and offer to life? Well, as it was stated in the Red Wing case, doing business with someone who does business in Minnesota, which was the forum, isn't the same as doing business in Minnesota. There's still a lot of money. I'm asking you why your letter, given the fact you hold a patent but don't manufacture the product, isn't the equivalent of a letter of someone who does manufacture the product? Where that person says, cease and desist, because I think you're infringing. And, by the way, by a license from us, so you can buy the product without question of infringement. I think the question revolves around whether there's actually doing business by an patent-tee in the forum. Economically, functionally, at the end of the day, I suppose you can say it winds up the same, but as a legal matter, that doesn't constitute doing business in the forum. Doing business with somebody who does business in the forum isn't doing business in the forum. But metabolites came to the forum, sent letters to consumers in the forum, and those letters can be read as a form of solicitation, some containing promotional materials, descriptions of the product in question. And in terms of the activity of the licensee, your licensee was an exclusive licensee, and I think the genetic implant case makes clear that it really doesn't make a difference whether the licensee is in the state or not. Well, I would suggest that if there were to be personal jurisdiction under these circumstances, then a patent-tee would be left without the ability to tell others about his patent. I don't know what less these letters could have said and still communicated to the person. So, the question is not what less is that these letters are more in the sense that they contain promotional materials. Here you have a party coming into the state, sending letters not to a competitor or sending letters to a consumer, ultimate consumer, which can be read, and in fact were read by the district court. And it's more than a season to system letters
. Right, but there's a suggestion that the exclusive licensee of your client, the patent-tee, should now become the source of the product that these drug chain stores would sell. I think that you can functionally, why isn't that the same as the circumstance where a patent-tee who also manufactures would threaten to sue and offer to life? Well, as it was stated in the Red Wing case, doing business with someone who does business in Minnesota, which was the forum, isn't the same as doing business in Minnesota. There's still a lot of money. I'm asking you why your letter, given the fact you hold a patent but don't manufacture the product, isn't the equivalent of a letter of someone who does manufacture the product? Where that person says, cease and desist, because I think you're infringing. And, by the way, by a license from us, so you can buy the product without question of infringement. I think the question revolves around whether there's actually doing business by an patent-tee in the forum. Economically, functionally, at the end of the day, I suppose you can say it winds up the same, but as a legal matter, that doesn't constitute doing business in the forum. Doing business with somebody who does business in the forum isn't doing business in the forum. But metabolites came to the forum, sent letters to consumers in the forum, and those letters can be read as a form of solicitation, some containing promotional materials, descriptions of the product in question. And in terms of the activity of the licensee, your licensee was an exclusive licensee, and I think the genetic implant case makes clear that it really doesn't make a difference whether the licensee is in the state or not. Well, I would suggest that if there were to be personal jurisdiction under these circumstances, then a patent-tee would be left without the ability to tell others about his patent. I don't know what less these letters could have said and still communicated to the person. So, the question is not what less is that these letters are more in the sense that they contain promotional materials. Here you have a party coming into the state, sending letters not to a competitor or sending letters to a consumer, ultimate consumer, which can be read, and in fact were read by the district court. And it's more than a season to system letters. Well, I think it's more in less than a season to system letters. There's no demand that they cease infringement because there's no validation infringement. But I'll grant you that the district court found that they constituted a solicitation in a sense. Well, to me that makes it less like red wing and more like some of these other things. Well, but in red wing there was an offer to license for call. And that was considered a form of solicitation. Yeah, but of course you couldn't include an offer to license because you already have an exclusive licensee. So it's not an option for you to offer the license. The equivalent is to tell them to buy from the person to whom you have exclusively licensed. I agree. I think that is essentially the equivalent. Well, why is the same reason it should be protected? Where is the line drawn then? If somebody issues a classic season to system letter and includes promotional materials, perhaps including details like prices, quantities available, and delivery time frames and so forth, then where is the line? And is it your position that only if it's an acceptable offer under contract law to the promotional materials, tips of scale, and provides for personal jurisdiction? I think in order to constitute doing business, business has to be transacted. Or at least there has to be an offer to transact business with the letter offer. So any promotional materials included in a season to system letter that fall short of an actual offer to sell, you would say would not tilt against the favor of personal jurisdiction. I think at some point you can start to split hairs on this, but we're far on the other side of the line because we weren't even a person in position to make a sale
. Well, I think it's more in less than a season to system letters. There's no demand that they cease infringement because there's no validation infringement. But I'll grant you that the district court found that they constituted a solicitation in a sense. Well, to me that makes it less like red wing and more like some of these other things. Well, but in red wing there was an offer to license for call. And that was considered a form of solicitation. Yeah, but of course you couldn't include an offer to license because you already have an exclusive licensee. So it's not an option for you to offer the license. The equivalent is to tell them to buy from the person to whom you have exclusively licensed. I agree. I think that is essentially the equivalent. Well, why is the same reason it should be protected? Where is the line drawn then? If somebody issues a classic season to system letter and includes promotional materials, perhaps including details like prices, quantities available, and delivery time frames and so forth, then where is the line? And is it your position that only if it's an acceptable offer under contract law to the promotional materials, tips of scale, and provides for personal jurisdiction? I think in order to constitute doing business, business has to be transacted. Or at least there has to be an offer to transact business with the letter offer. So any promotional materials included in a season to system letter that fall short of an actual offer to sell, you would say would not tilt against the favor of personal jurisdiction. I think at some point you can start to split hairs on this, but we're far on the other side of the line because we weren't even a person in position to make a sale. I mean, we were directing them or suggesting that they look at this other licensee, but that is far, far short. Suppose that I'm in your position and I send a season to system letter in the classic language, and I include my licensee's promotional material describing the product, and I include an order form that the recipient of the letter can sign to order 10,000 letters. And those? Well, now I think you're talking about an agency arrangement. If the author of the letter is taking orders on behalf of someone who's prepared to fill those. No, no, no, no, no, no. I'm saying I include in my season to system letter an order form addressed to my exclusive licensee who manufactures the product so that I'm encouraging the recipient of my letter, who I'm threatening with an infringement suit, to fill out the order form of my licensee and buy the licensee's product, and of course I get oiled. I think that would be an agency arrangement, and under order there is state law agency. There would be personal jurisdiction there. But this is quite different. Now, Mr. Beatton, you mentioned a moment ago that you, the table, I was not actually doing business in foreign. So I gather this in an attempt to sort of distance yourself from your licensee that clearly was doing business in foreign. The licensee clearly was doing business in Florida. But yet you have, but you know, in the license agreement, first the license agreement, I have to say it was an exclusive license agreement, at least with respect to this product. With respect to this product, yes
. I mean, we were directing them or suggesting that they look at this other licensee, but that is far, far short. Suppose that I'm in your position and I send a season to system letter in the classic language, and I include my licensee's promotional material describing the product, and I include an order form that the recipient of the letter can sign to order 10,000 letters. And those? Well, now I think you're talking about an agency arrangement. If the author of the letter is taking orders on behalf of someone who's prepared to fill those. No, no, no, no, no, no. I'm saying I include in my season to system letter an order form addressed to my exclusive licensee who manufactures the product so that I'm encouraging the recipient of my letter, who I'm threatening with an infringement suit, to fill out the order form of my licensee and buy the licensee's product, and of course I get oiled. I think that would be an agency arrangement, and under order there is state law agency. There would be personal jurisdiction there. But this is quite different. Now, Mr. Beatton, you mentioned a moment ago that you, the table, I was not actually doing business in foreign. So I gather this in an attempt to sort of distance yourself from your licensee that clearly was doing business in foreign. The licensee clearly was doing business in Florida. But yet you have, but you know, in the license agreement, first the license agreement, I have to say it was an exclusive license agreement, at least with respect to this product. With respect to this product, yes. And add some obligations on the patenties part to cooperate with the licensee and to enforce the patent. Well, the license agreement, Judge Lynn, was very specific in that regard. On page 321 of index, in section 6.01 there was an obligation. If either party becomes aware of any actual or suspected infringement of any license patent, by any third party, you shall promptly notify the other party. But then on 6.02, it goes on to say, I see a lot of time, so I won't be back. Finish your answer. Well, on 6.02, it specifically withholds from the licensee right to enforce the patent, except with the consent of the patentie. There's one other related point that I should mention, and that's on two pages back on the license agreement. Section 9.05, this is with regard to this agency issue. 9.05 has this typical contract, specifically states that the parties aren't partners or joint ventures
. And add some obligations on the patenties part to cooperate with the licensee and to enforce the patent. Well, the license agreement, Judge Lynn, was very specific in that regard. On page 321 of index, in section 6.01 there was an obligation. If either party becomes aware of any actual or suspected infringement of any license patent, by any third party, you shall promptly notify the other party. But then on 6.02, it goes on to say, I see a lot of time, so I won't be back. Finish your answer. Well, on 6.02, it specifically withholds from the licensee right to enforce the patent, except with the consent of the patentie. There's one other related point that I should mention, and that's on two pages back on the license agreement. Section 9.05, this is with regard to this agency issue. 9.05 has this typical contract, specifically states that the parties aren't partners or joint ventures. I either not agents. Thank you. Well, when you say in conjunction with, is there some evidentiary proof in the record of this motion of communications back and forth between the patentie and the exclusive licensee? The doctor Allen says that he testified in his deposition to the patentie. In fact, who descended these materials to these letters, where in fact given to him these are the family? In other words, the exclusive licensee said targeted who should get the letters. So to say that the exclusive licensee was not working with the patentie in this would be not really accurate because the patentie didn't know who descended to. They were designated by the exclusive licensee. The exclusive licensee's materials were there for the purposes of the sales, and that's quite the point in the lower or decided that in fact this is a solicitation. This is not a simple cease and the sense. In fact, they are going for business in this balance. If the district court had found that it was a solicitation, the holding would have been to the conference. Well, I believe it would have used a different standard in terms of its analysis. And I think with not using it as a cease and the cease letter, it would have resulted in an analysis that would have said yes, we have jurisdiction. And there and where it is, where the problem is, because once the court had decided, well, if I also viewed this as a cease and the cease, and therefore give it an exemption, I'm not going to be personal with the restriction. And in fact, I don't understand what you're saying. You're saying that the district judge decided what result he wanted and then ignored contrary law
. I either not agents. Thank you. Well, when you say in conjunction with, is there some evidentiary proof in the record of this motion of communications back and forth between the patentie and the exclusive licensee? The doctor Allen says that he testified in his deposition to the patentie. In fact, who descended these materials to these letters, where in fact given to him these are the family? In other words, the exclusive licensee said targeted who should get the letters. So to say that the exclusive licensee was not working with the patentie in this would be not really accurate because the patentie didn't know who descended to. They were designated by the exclusive licensee. The exclusive licensee's materials were there for the purposes of the sales, and that's quite the point in the lower or decided that in fact this is a solicitation. This is not a simple cease and the sense. In fact, they are going for business in this balance. If the district court had found that it was a solicitation, the holding would have been to the conference. Well, I believe it would have used a different standard in terms of its analysis. And I think with not using it as a cease and the cease letter, it would have resulted in an analysis that would have said yes, we have jurisdiction. And there and where it is, where the problem is, because once the court had decided, well, if I also viewed this as a cease and the cease, and therefore give it an exemption, I'm not going to be personal with the restriction. And in fact, I don't understand what you're saying. You're saying that the district judge decided what result he wanted and then ignored contrary law. No, your honor. Well, what do you think? Well, the court said that the solicitation in its analysis treated the letter as a cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and they too God is there, so you wouldto it. use them, that these are the only people that are trying to say that these are the only people you can get a product from. So it's saying it by virtue of the understanding of why it's transporting in terms of information. But isn't it conditional because it starts out saying consult your patent counsel. If you consulted your patent counsel and that lawyer concluded there's no infringement, then obviously the reference to Pemlaeb would fall out of the list. Yes, you're right. It does make that reference. And I don't believe the reference in the practical world of buyers where everyone is going to look and have a patent lawyer review the letter is a practical approach to understanding whether or not you're casting a net that's too far. And in fact, it's not going to mean a net too far. You said that before, I don't understand what you're saying. Well, it's a potential letter to too many people. The scope of it is in calculating, incorporating product that is non-infringent. Well, that's a matter of opinion. That's what the lawsuit would be about if there's a lawsuit
. No, your honor. Well, what do you think? Well, the court said that the solicitation in its analysis treated the letter as a cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and the cease and they too God is there, so you wouldto it. use them, that these are the only people that are trying to say that these are the only people you can get a product from. So it's saying it by virtue of the understanding of why it's transporting in terms of information. But isn't it conditional because it starts out saying consult your patent counsel. If you consulted your patent counsel and that lawyer concluded there's no infringement, then obviously the reference to Pemlaeb would fall out of the list. Yes, you're right. It does make that reference. And I don't believe the reference in the practical world of buyers where everyone is going to look and have a patent lawyer review the letter is a practical approach to understanding whether or not you're casting a net that's too far. And in fact, it's not going to mean a net too far. You said that before, I don't understand what you're saying. Well, it's a potential letter to too many people. The scope of it is in calculating, incorporating product that is non-infringent. Well, that's a matter of opinion. That's what the lawsuit would be about if there's a lawsuit. We can't accept, as a premise, that the product in question is non-infringent. It's not a product patent. Well, of course, that the product couldn't be used in the methods that would infringe. It's only if it's used for that specific treatment in purpose. Any other use, such as vitamin deficiency? Yes, both of these degrees with that, apparently. And that's why you're trying to confer with a patent lawyer. So it seems to me that the reference to pen lab is a conditional reference, depending on what the advice of a patent lawyer would be. Yes. That takes it a big step, I would think, away from being an offer to sell products or a solicitation for the drug chains to buy the product from Pemla. No, you're on, I think, that the content is to actually buy the product from them and only from them. And that's exactly- Even if there's no infringement? I believe that's what it was, and it's important, insane to the buyer, that you don't even want the possibility. So therefore, you can only buy from us. Mr. Persu, Mr. Beaton corrects is that the promotional materials, the descriptive materials in close with those letters are not part of the recipe
. I believe that is the case here, I don't mind. I don't believe it is not. Now, is that because they're not that important? If that letter is some form of solicitation or offer or something else to suggest that metabolite came into the state of Florida to do business through its licensing in the state of Florida, don't you think the content of those enclosures is relevant? It's relevant into this, in this sense of describing the product. Yes, Your Honor. I don't understand them as being actually like what is to purchase or something with the chance to screen information to create a purchase on the spot. I believe in that. Thank you both. We'll take the case under advisement