Please begin. Thank you, honors. This case and the appeal of this case really stands and begins from a settlement conference that occurred in February 2012. A couple months later, the trial of the first lawsuit between Fleming and S. Court was living to occur in June of 2012. That February 2012, some of the conference did not result in a settlement. A few days later, S. Court's business partners who resel, S. Court's products received letters from Mr. Fleming through his counsel. And those letters stated unequivocally that they were liable because they were selling S
. Court's products. In addition, those letters stated that S. Court was recently purchased in a bankruptcy for auction and was quick to note that and to the extent S. Court is unable to pay the full damage award, then the customer would be implicated. On the same date that S. Court was notified that its business partners... I think at least I'll speak for myself. I think I have the facts well and so why is this suit not quite plainly barred by the Idaho litigation privilege? You're honest because the Idaho State litigation privilege conflicts with federal patent law regarding
... Do you think federal patent law requires Idaho to supply state law liability for this? I'm sorry I could see. You think that federal patent law affirmatively requires a state to provide for state law liability for these letters? That's your argument, right? Well, I think no, I don't think it is your argument. The argument is that federal patent law governs the propriety of patent law. All that happened here was that the court said there shall be no Idaho liability for these letters. But that of course is contrary to federal patent law which allows action on patent notice rights. When you say allows action, federal patent law doesn't create a cause of action for disparagement. But what it does is.
.. The state law that creates the cause of action in federal law says you can't enforce that cause of action with respect to some statements. And Idaho says we'll go even farther. You can't enforce that with respect to an even larger number of statements. How does that help you? How does that mean that federal patent law somehow works in your favor? And because that is a conflict between what federal patent law says and the protection that is afforded by Idaho State litigation privilege. One of the purposes, well, we have a supremacy issue. You have to look in if there's a conflict with federal law and state law. You have to truly determine whether there is a conflict between the protections offered by the state. So you're saying that federal patent law requires Idaho to apply its disparagement, state disparagement statute in circumstances in which Idaho would not otherwise apply that statute. Is that your argument? Effectively yes because of the standard that federal patent law applies with respect to the propriety of patent notice rights
. Federal patent law very clearly says that patent notice rights have to be correct and accurate. They have to be made in bad faith otherwise they're actually in the law otherwise they're actionable. If there is a state law cause of action, it would not be for close right? That's true. That's different from saying it's actionable in the sense that federal patent law creates the cause of action. It is not. It makes it potentially actionable because it's not in conformance with federal patent law. And we don't have any argument here or basis for an argument that Idaho had somehow selectively disfavored federal policies. I don't remember seeing any such argument. So as far as I can tell, this is a perfectly uniform view of the Idaho litigation privilege that says that would apply whether whether there were state or federal law in the background. Yeah, I agree with that
. That Idaho law does not specifically call out patent issues for this application. Because sometimes there is a kind of federal preemption of discriminatory state decisions that is discriminatory against federal claims. So the absence of that I think does return this to the situation we've been talking about that your federal preemption argument is necessarily an argument that federal law requires Idaho to recognize a state law cause of action for liability. I don't think it has to it requires Idaho to recognize it. What it has to do is state litigation privilege has to comply with federal patent law. The full purposes of federal federal patent laws it relates to patent notice rates includes that those notices must be accurate and they must be made in good faith. Let me let me ask you this question. Suppose Idaho had no disparagement statute at all. In fact, three years ago, let's suppose the Idaho legislature in this wisdom decided disparagement creates all sorts of first amendment problems or problems with the first amendment to the Idaho Constitution. We're going to get rid of the disparagement statute
. So there's no disparagement statute at all. Is it your position that the patent law would require Idaho to create a disparagement statute or disparagement clause of action? No, that's not the case. So if Idaho could have no disparagement clause of action, why can't it have a disparagement clause of action that is very, very narrow narrowed by the privilege of litigation privilege? Because a lack of a disparagement clause of action is not in conflict with federal patent law. But what we do know from the zenith case, we sign in our case that bad faith marketplace statements, concerning patents, do not further the purposes of the patent law. The 100 Douglas case from federal circumstances. Okay, can I just say can I ask this? I take it from your starting with and so far focusing only on an argument about inconsistency with federal policy that you are not disputing that as a matter of Idaho law, the interpretation of its litigation privilege support would all by itself support the result of the legal law. That's on a field here. Yeah, we're not objecting to that. If interpreted as the district court did the state litigation privilege immunizes bad faith conduit, it does the way it's interpreted. But again, what you have here is federal patent law saying that this is not an issue for state law
. That's the micongaming case that the propriety of a patent notice rate is not a matter of state law. But rather national uniformity requires that the propriety of a patent notice is determined solely by federal precedent. And quote is not a matter of state twirl. That's the micongaming case. And there are others that speak to the same thing when these federal circuit cases say that notices about one's patent rights must be made in good faith. So what you have is a state Idaho litigation privilege that immunizes the very conduct that is not provided for or underfed from federal law. Not provided for. I mean, it seems to me that's the verb that is hard to find for your argument is what it is that it immunizes that patent law protects or gives the right with respect to. That seems to me the big problem. It's a good point and because there's no federal law that you can have a cause of action
. But that federal law does provide insight as to the merits of the state law claim. For example, torsional interference with business. It won't allow the state law to invade an area that the patent law provides a defense to. To press such a credit shortly, but that's quite different from the flip side. It seems to me I'm saying that it refuses to allow the state to protect certain kinds of conduct. And I don't disagree with that. But if you don't disagree with that, it's hard to see how you can win this case. Well, again, it's because federal patent law has the federal circuit has said repeatedly that this is not an issue for state twirl. The micron game, you know, that sounds like a field preemption argument that state torsional has no role to play in any area of a patent that is surely haven't said that. Yeah, that's correct
. Actually, the case is from federal circuit setting and that conflict preemption and that could help you. I'm sorry, and that couldn't help you. That would mean there would be no cause of action even in what's our correct. Yes. So again, the third patent law provides that patent notice rights are improper if they're made in bad faith, if they're false, and if they're inaccurate. State Idaho privilege immunizes that same type of conduct. And so there is a conflict between what the federal patent law says and what state litigation privilege says. And that is why we believe that the court aired when it was by the state litigation privilege to immunize conduct that the federal patent law has said is not appropriate. Assuming you're right that the patent law scope of the patent law protection is what governs here. What is it about these letters that you think violates the scope of the patent law protection for notices, ceases, this letters and notices the infringement? Sure
. So there are two statements. One is these letters stated that escort business customers are liable and that is simply not true. And in fact, at trial, escort obtain a fully paid up license and the appellees admit that the district court exonerated escorts customers because of that license. Now, what the appellees also say in there can explain what that means that the district court exonerated the customers, the district court in the first case. In the second, in the second, the second district court said that there cannot be a double recovery against escorts customers because there's a fully paid up license that's been with that license and district court decision before or after these letters. After. Well, how do we know when the letters were sent, whether these customers could have been liable or not? They could have been liable. It's only after the fact that once you got the license that they weren't liable. I agree. And so why is the notion of a license relevant at all to this argument? Well, I think it bears on the fact the statement of liability when it was made was not true because there was no determination of liability at that time. Well, but that's always true when you send a cease and desist letter. You say, I believe you're infringing my patent. We don't know you're infringing. So is that make that statement untrue and therefore actionable? I wouldn't think so. In your context, you said the letter says I believe that. Okay, let's suppose that I was a little more forceful than that. And I said, you are infringing my patent. Is that forbidden by patent law? It seems to me that's exactly what the patent law says is okay. If there's a reasonable belief that the product that you shoot does in fact in French, then there's nothing wrong with that. Because in that hypothetical, you'll have been made in good faith
. Well, but that's always true when you send a cease and desist letter. You say, I believe you're infringing my patent. We don't know you're infringing. So is that make that statement untrue and therefore actionable? I wouldn't think so. In your context, you said the letter says I believe that. Okay, let's suppose that I was a little more forceful than that. And I said, you are infringing my patent. Is that forbidden by patent law? It seems to me that's exactly what the patent law says is okay. If there's a reasonable belief that the product that you shoot does in fact in French, then there's nothing wrong with that. Because in that hypothetical, you'll have been made in good faith. But at the time of the district court's decision, a statement that there is liability is false. And a statement that there is bankruptcy is false as well. I'll reserve a few minutes. I'll reserve a minute and a half. Thank you. May I please report? The only thing I heard argued was preemption. Preemption was never raised before the district court. This court is not a court of first suppression. In fact, it's often held that arguments not presented to the district court are not considered on appeal. Since doing so destroys the appellate process by rendering the district court relevant
. But at the time of the district court's decision, a statement that there is liability is false. And a statement that there is bankruptcy is false as well. I'll reserve a few minutes. I'll reserve a minute and a half. Thank you. May I please report? The only thing I heard argued was preemption. Preemption was never raised before the district court. This court is not a court of first suppression. In fact, it's often held that arguments not presented to the district court are not considered on appeal. Since doing so destroys the appellate process by rendering the district court relevant. The only thing that S-Court argued to the district court was whether the Idaho litigation privilege, the Idaho litigation privilege doesn't apply because the notice letter was not a statement made to a judge during appending litigation. So the district court never got a chance to pass on this preemption issue, along with frankly everything else in their brief that has been presented to the court. There's nothing about good faith, nothing about whether the privilege applies to pre-wetigation communications and certainly nothing about preemption. So it's Mr. Flames' position that this court shouldn't be ruling on it as a matter of first suppression. Do you think this court belongs in this court or do you think the Ninth Circuit shouldn't have sent it over to us? You know, I wonder if you guys would ask that question. Our position is that we went to the Ninth Circuit and said that it belonged here. And the reason we did was because we understand that the statements made in the complaint are assumed to be true for purposes of a 12-B6 motion. And escort plaid and it's complaint that jurisdiction for the case arose under 1338. And under Section 1295 says that this court has exclusive jurisdiction for cases that arise in whole or in part under Section 1338
. The only thing that S-Court argued to the district court was whether the Idaho litigation privilege, the Idaho litigation privilege doesn't apply because the notice letter was not a statement made to a judge during appending litigation. So the district court never got a chance to pass on this preemption issue, along with frankly everything else in their brief that has been presented to the court. There's nothing about good faith, nothing about whether the privilege applies to pre-wetigation communications and certainly nothing about preemption. So it's Mr. Flames' position that this court shouldn't be ruling on it as a matter of first suppression. Do you think this court belongs in this court or do you think the Ninth Circuit shouldn't have sent it over to us? You know, I wonder if you guys would ask that question. Our position is that we went to the Ninth Circuit and said that it belonged here. And the reason we did was because we understand that the statements made in the complaint are assumed to be true for purposes of a 12-B6 motion. And escort plaid and it's complaint that jurisdiction for the case arose under 1338. And under Section 1295 says that this court has exclusive jurisdiction for cases that arise in whole or in part under Section 1338. So... Well, somebody could have an automobile accident case and say that it arises under 1338. That doesn't get them into district court and this court. It's got to be substantial claim that it arises under that. Agreed. And I think that you'll actually see in our briefing there, we cited to the Ninth Circuit a case from the score where the exact scenario took place and I believe it was even a notice of infringement letter. Additive controls is a case from this court that on facts roughly similar to this says this court has jurisdiction because it improving the.
. So... Well, somebody could have an automobile accident case and say that it arises under 1338. That doesn't get them into district court and this court. It's got to be substantial claim that it arises under that. Agreed. And I think that you'll actually see in our briefing there, we cited to the Ninth Circuit a case from the score where the exact scenario took place and I believe it was even a notice of infringement letter. Additive controls is a case from this court that on facts roughly similar to this says this court has jurisdiction because it improving the... At least some of the allegations have been pried. You have to prove that there was no likelihood of infringement and therefore that gets you into that law. But do you think that the Supreme Court's more recent decision in the gun in that in case changes that kind of analysis? Are you familiar with that case? Honestly, you're on our island now. Well, I think that I'm not. I would draw the question that is because it is a... I suspect that this case is here regardless of what the exact answer to that question is because the Ninth Circuit sent it here. And it's not clear enough a case for us to send it back
.. At least some of the allegations have been pried. You have to prove that there was no likelihood of infringement and therefore that gets you into that law. But do you think that the Supreme Court's more recent decision in the gun in that in case changes that kind of analysis? Are you familiar with that case? Honestly, you're on our island now. Well, I think that I'm not. I would draw the question that is because it is a... I suspect that this case is here regardless of what the exact answer to that question is because the Ninth Circuit sent it here. And it's not clear enough a case for us to send it back. Well, and I wish I can I can grab my brief and find the site but but there is precedent from this court that in these in these I've almost identical circumstances relating to a notice letter that was actually before the Ninth Circuit. I think that precedent is largely before the Supreme Court case though, which substantially at least for me, muddies the water. Okay. All right. Fair enough. I was going to address some of the issues about the arguments that were made in Escorts Brief about whether or not the Idaho litigation privilege covers the circumstances of this case. And you know, they argued that it didn't but then I heard Mr. Schatz concede, I think that in fact under these facts the Idaho litigation privilege does cover the situation. And it's only an issue of whether or not the law is preempted. And so I don't think that I'm going to go into all their various arguments unless you think that they would be helpful as to whether or not the Idaho litigation privilege doesn't apply as they suggested in brief
. Well, and I wish I can I can grab my brief and find the site but but there is precedent from this court that in these in these I've almost identical circumstances relating to a notice letter that was actually before the Ninth Circuit. I think that precedent is largely before the Supreme Court case though, which substantially at least for me, muddies the water. Okay. All right. Fair enough. I was going to address some of the issues about the arguments that were made in Escorts Brief about whether or not the Idaho litigation privilege covers the circumstances of this case. And you know, they argued that it didn't but then I heard Mr. Schatz concede, I think that in fact under these facts the Idaho litigation privilege does cover the situation. And it's only an issue of whether or not the law is preempted. And so I don't think that I'm going to go into all their various arguments unless you think that they would be helpful as to whether or not the Idaho litigation privilege doesn't apply as they suggested in brief. I heard the same thing from Mr. Schatz as you did. Okay. If I may, I'll reserve rest of my time. I don't think you get to reserve it. I'm happy for you to sit down. Thank you. Thank you, owners. First of all, Escort did argue below this issue that federal patent law applies in response to the Apple East motion to dismiss, which was based on state litigation privilege. Escort argued the micron gaming case, which specifically says that federal patent law requires that no suspect in good faith
. I heard the same thing from Mr. Schatz as you did. Okay. If I may, I'll reserve rest of my time. I don't think you get to reserve it. I'm happy for you to sit down. Thank you. Thank you, owners. First of all, Escort did argue below this issue that federal patent law applies in response to the Apple East motion to dismiss, which was based on state litigation privilege. Escort argued the micron gaming case, which specifically says that federal patent law requires that no suspect in good faith. And that is that following points in the record. Escort is a federal patent law issue and that patent notice rights that are given in bad faith are actionable. With respect to Mr. Deller's comments about us not arguing good faith, this relates to the fact that the district court found that the patent notice rights are allegedly related to funding to a case that had not been filed at the time. Good faith is an affirmative defense that is not appropriate for pleading in a complaint. In other words, Escort was not required to plead around an affirmative defense or a claim that a letter was sent in good faith contemplation of a lawsuit. I see that amount of time, but that's the reason why good faith was not raised. There was never raised by the Apple East at all whether or not it was a contemplated case. That is why there was no response from that point. Thank you Mr
. And that is that following points in the record. Escort is a federal patent law issue and that patent notice rights that are given in bad faith are actionable. With respect to Mr. Deller's comments about us not arguing good faith, this relates to the fact that the district court found that the patent notice rights are allegedly related to funding to a case that had not been filed at the time. Good faith is an affirmative defense that is not appropriate for pleading in a complaint. In other words, Escort was not required to plead around an affirmative defense or a claim that a letter was sent in good faith contemplation of a lawsuit. I see that amount of time, but that's the reason why good faith was not raised. There was never raised by the Apple East at all whether or not it was a contemplated case. That is why there was no response from that point. Thank you Mr. Schatz. The case is submitted.
Please begin. Thank you, honors. This case and the appeal of this case really stands and begins from a settlement conference that occurred in February 2012. A couple months later, the trial of the first lawsuit between Fleming and S. Court was living to occur in June of 2012. That February 2012, some of the conference did not result in a settlement. A few days later, S. Court's business partners who resel, S. Court's products received letters from Mr. Fleming through his counsel. And those letters stated unequivocally that they were liable because they were selling S. Court's products. In addition, those letters stated that S. Court was recently purchased in a bankruptcy for auction and was quick to note that and to the extent S. Court is unable to pay the full damage award, then the customer would be implicated. On the same date that S. Court was notified that its business partners... I think at least I'll speak for myself. I think I have the facts well and so why is this suit not quite plainly barred by the Idaho litigation privilege? You're honest because the Idaho State litigation privilege conflicts with federal patent law regarding... Do you think federal patent law requires Idaho to supply state law liability for this? I'm sorry I could see. You think that federal patent law affirmatively requires a state to provide for state law liability for these letters? That's your argument, right? Well, I think no, I don't think it is your argument. The argument is that federal patent law governs the propriety of patent law. All that happened here was that the court said there shall be no Idaho liability for these letters. But that of course is contrary to federal patent law which allows action on patent notice rights. When you say allows action, federal patent law doesn't create a cause of action for disparagement. But what it does is... The state law that creates the cause of action in federal law says you can't enforce that cause of action with respect to some statements. And Idaho says we'll go even farther. You can't enforce that with respect to an even larger number of statements. How does that help you? How does that mean that federal patent law somehow works in your favor? And because that is a conflict between what federal patent law says and the protection that is afforded by Idaho State litigation privilege. One of the purposes, well, we have a supremacy issue. You have to look in if there's a conflict with federal law and state law. You have to truly determine whether there is a conflict between the protections offered by the state. So you're saying that federal patent law requires Idaho to apply its disparagement, state disparagement statute in circumstances in which Idaho would not otherwise apply that statute. Is that your argument? Effectively yes because of the standard that federal patent law applies with respect to the propriety of patent notice rights. Federal patent law very clearly says that patent notice rights have to be correct and accurate. They have to be made in bad faith otherwise they're actually in the law otherwise they're actionable. If there is a state law cause of action, it would not be for close right? That's true. That's different from saying it's actionable in the sense that federal patent law creates the cause of action. It is not. It makes it potentially actionable because it's not in conformance with federal patent law. And we don't have any argument here or basis for an argument that Idaho had somehow selectively disfavored federal policies. I don't remember seeing any such argument. So as far as I can tell, this is a perfectly uniform view of the Idaho litigation privilege that says that would apply whether whether there were state or federal law in the background. Yeah, I agree with that. That Idaho law does not specifically call out patent issues for this application. Because sometimes there is a kind of federal preemption of discriminatory state decisions that is discriminatory against federal claims. So the absence of that I think does return this to the situation we've been talking about that your federal preemption argument is necessarily an argument that federal law requires Idaho to recognize a state law cause of action for liability. I don't think it has to it requires Idaho to recognize it. What it has to do is state litigation privilege has to comply with federal patent law. The full purposes of federal federal patent laws it relates to patent notice rates includes that those notices must be accurate and they must be made in good faith. Let me let me ask you this question. Suppose Idaho had no disparagement statute at all. In fact, three years ago, let's suppose the Idaho legislature in this wisdom decided disparagement creates all sorts of first amendment problems or problems with the first amendment to the Idaho Constitution. We're going to get rid of the disparagement statute. So there's no disparagement statute at all. Is it your position that the patent law would require Idaho to create a disparagement statute or disparagement clause of action? No, that's not the case. So if Idaho could have no disparagement clause of action, why can't it have a disparagement clause of action that is very, very narrow narrowed by the privilege of litigation privilege? Because a lack of a disparagement clause of action is not in conflict with federal patent law. But what we do know from the zenith case, we sign in our case that bad faith marketplace statements, concerning patents, do not further the purposes of the patent law. The 100 Douglas case from federal circumstances. Okay, can I just say can I ask this? I take it from your starting with and so far focusing only on an argument about inconsistency with federal policy that you are not disputing that as a matter of Idaho law, the interpretation of its litigation privilege support would all by itself support the result of the legal law. That's on a field here. Yeah, we're not objecting to that. If interpreted as the district court did the state litigation privilege immunizes bad faith conduit, it does the way it's interpreted. But again, what you have here is federal patent law saying that this is not an issue for state law. That's the micongaming case that the propriety of a patent notice rate is not a matter of state law. But rather national uniformity requires that the propriety of a patent notice is determined solely by federal precedent. And quote is not a matter of state twirl. That's the micongaming case. And there are others that speak to the same thing when these federal circuit cases say that notices about one's patent rights must be made in good faith. So what you have is a state Idaho litigation privilege that immunizes the very conduct that is not provided for or underfed from federal law. Not provided for. I mean, it seems to me that's the verb that is hard to find for your argument is what it is that it immunizes that patent law protects or gives the right with respect to. That seems to me the big problem. It's a good point and because there's no federal law that you can have a cause of action. But that federal law does provide insight as to the merits of the state law claim. For example, torsional interference with business. It won't allow the state law to invade an area that the patent law provides a defense to. To press such a credit shortly, but that's quite different from the flip side. It seems to me I'm saying that it refuses to allow the state to protect certain kinds of conduct. And I don't disagree with that. But if you don't disagree with that, it's hard to see how you can win this case. Well, again, it's because federal patent law has the federal circuit has said repeatedly that this is not an issue for state twirl. The micron game, you know, that sounds like a field preemption argument that state torsional has no role to play in any area of a patent that is surely haven't said that. Yeah, that's correct. Actually, the case is from federal circuit setting and that conflict preemption and that could help you. I'm sorry, and that couldn't help you. That would mean there would be no cause of action even in what's our correct. Yes. So again, the third patent law provides that patent notice rights are improper if they're made in bad faith, if they're false, and if they're inaccurate. State Idaho privilege immunizes that same type of conduct. And so there is a conflict between what the federal patent law says and what state litigation privilege says. And that is why we believe that the court aired when it was by the state litigation privilege to immunize conduct that the federal patent law has said is not appropriate. Assuming you're right that the patent law scope of the patent law protection is what governs here. What is it about these letters that you think violates the scope of the patent law protection for notices, ceases, this letters and notices the infringement? Sure. So there are two statements. One is these letters stated that escort business customers are liable and that is simply not true. And in fact, at trial, escort obtain a fully paid up license and the appellees admit that the district court exonerated escorts customers because of that license. Now, what the appellees also say in there can explain what that means that the district court exonerated the customers, the district court in the first case. In the second, in the second, the second district court said that there cannot be a double recovery against escorts customers because there's a fully paid up license that's been with that license and district court decision before or after these letters. After. Well, how do we know when the letters were sent, whether these customers could have been liable or not? They could have been liable. It's only after the fact that once you got the license that they weren't liable. I agree. And so why is the notion of a license relevant at all to this argument? Well, I think it bears on the fact the statement of liability when it was made was not true because there was no determination of liability at that time. Well, but that's always true when you send a cease and desist letter. You say, I believe you're infringing my patent. We don't know you're infringing. So is that make that statement untrue and therefore actionable? I wouldn't think so. In your context, you said the letter says I believe that. Okay, let's suppose that I was a little more forceful than that. And I said, you are infringing my patent. Is that forbidden by patent law? It seems to me that's exactly what the patent law says is okay. If there's a reasonable belief that the product that you shoot does in fact in French, then there's nothing wrong with that. Because in that hypothetical, you'll have been made in good faith. But at the time of the district court's decision, a statement that there is liability is false. And a statement that there is bankruptcy is false as well. I'll reserve a few minutes. I'll reserve a minute and a half. Thank you. May I please report? The only thing I heard argued was preemption. Preemption was never raised before the district court. This court is not a court of first suppression. In fact, it's often held that arguments not presented to the district court are not considered on appeal. Since doing so destroys the appellate process by rendering the district court relevant. The only thing that S-Court argued to the district court was whether the Idaho litigation privilege, the Idaho litigation privilege doesn't apply because the notice letter was not a statement made to a judge during appending litigation. So the district court never got a chance to pass on this preemption issue, along with frankly everything else in their brief that has been presented to the court. There's nothing about good faith, nothing about whether the privilege applies to pre-wetigation communications and certainly nothing about preemption. So it's Mr. Flames' position that this court shouldn't be ruling on it as a matter of first suppression. Do you think this court belongs in this court or do you think the Ninth Circuit shouldn't have sent it over to us? You know, I wonder if you guys would ask that question. Our position is that we went to the Ninth Circuit and said that it belonged here. And the reason we did was because we understand that the statements made in the complaint are assumed to be true for purposes of a 12-B6 motion. And escort plaid and it's complaint that jurisdiction for the case arose under 1338. And under Section 1295 says that this court has exclusive jurisdiction for cases that arise in whole or in part under Section 1338. So... Well, somebody could have an automobile accident case and say that it arises under 1338. That doesn't get them into district court and this court. It's got to be substantial claim that it arises under that. Agreed. And I think that you'll actually see in our briefing there, we cited to the Ninth Circuit a case from the score where the exact scenario took place and I believe it was even a notice of infringement letter. Additive controls is a case from this court that on facts roughly similar to this says this court has jurisdiction because it improving the... At least some of the allegations have been pried. You have to prove that there was no likelihood of infringement and therefore that gets you into that law. But do you think that the Supreme Court's more recent decision in the gun in that in case changes that kind of analysis? Are you familiar with that case? Honestly, you're on our island now. Well, I think that I'm not. I would draw the question that is because it is a... I suspect that this case is here regardless of what the exact answer to that question is because the Ninth Circuit sent it here. And it's not clear enough a case for us to send it back. Well, and I wish I can I can grab my brief and find the site but but there is precedent from this court that in these in these I've almost identical circumstances relating to a notice letter that was actually before the Ninth Circuit. I think that precedent is largely before the Supreme Court case though, which substantially at least for me, muddies the water. Okay. All right. Fair enough. I was going to address some of the issues about the arguments that were made in Escorts Brief about whether or not the Idaho litigation privilege covers the circumstances of this case. And you know, they argued that it didn't but then I heard Mr. Schatz concede, I think that in fact under these facts the Idaho litigation privilege does cover the situation. And it's only an issue of whether or not the law is preempted. And so I don't think that I'm going to go into all their various arguments unless you think that they would be helpful as to whether or not the Idaho litigation privilege doesn't apply as they suggested in brief. I heard the same thing from Mr. Schatz as you did. Okay. If I may, I'll reserve rest of my time. I don't think you get to reserve it. I'm happy for you to sit down. Thank you. Thank you, owners. First of all, Escort did argue below this issue that federal patent law applies in response to the Apple East motion to dismiss, which was based on state litigation privilege. Escort argued the micron gaming case, which specifically says that federal patent law requires that no suspect in good faith. And that is that following points in the record. Escort is a federal patent law issue and that patent notice rights that are given in bad faith are actionable. With respect to Mr. Deller's comments about us not arguing good faith, this relates to the fact that the district court found that the patent notice rights are allegedly related to funding to a case that had not been filed at the time. Good faith is an affirmative defense that is not appropriate for pleading in a complaint. In other words, Escort was not required to plead around an affirmative defense or a claim that a letter was sent in good faith contemplation of a lawsuit. I see that amount of time, but that's the reason why good faith was not raised. There was never raised by the Apple East at all whether or not it was a contemplated case. That is why there was no response from that point. Thank you Mr. Schatz. The case is submitted