Oh, verses. Just grow along when you're ready. Good morning and may it please the court. My name is Kevin Allen. I represent the appellant Matthews International Corporation. The district court here concluded that there was not a case or controversy. Suffice to vest the district court with jurisdiction. That decision was erroneous and Matthews requests respectfully that this court reversed. This case involves express allegations of infringement. This case involves an immediate and real controversy of a substantial nature between parties with an adverse legal interest. Not only does the district court's decision conflict with certain decisions from this court and certain precedent from this court, it conflicts with leading precedent and very recent decisions on the subject of declaratory relief. For instance, just a few months ago in 3M versus Avery, this court held that if a party had actually been charged, with infringement, there is necessarily a case or controversy. That holding from 3M echoes the same holding from this court and what may be the leading decision on declaratory judgment jurisdiction, the arrowhead case
. So if you have express allegations of infringement, this court has said no further inquiry is necessary. Here, there are express allegations of infringement. And not only that, it's by high ranking officials. The record clearly reflects that the then president of biosafes called the North American division president for Matthews, after Matthews announced that it would be selling these products at issue. And biosafes then president said, hey, Matthews, your product and the process that it employs will violate our patents. You're talking about December 31, 08. Yes, it's cool. And then later at a trade show, the president of the cremation division of Matthews is at the trade show as is the then president of biosafes. And again, that gentleman from biosafes approaches Matthews president and says again, bio cremation, Matthews product infringes our patent. Those accusations are not just made directly to senior officials from senior officials. Biosafes may be accusations to potential customers. Most importantly, or most illustriatively, biosafes may be accusations to perhaps the company that could be the largest purchaser of Matthews equipment
. Stewart Enterprises is a nationwide owner of funeral homes. Funeral homes are the buyers of these products. Stewart, Matthews doesn't operate any equipment, right? That's correct, you're right. Matthews is a tribute equipment that's made in Scotland, right? It is the licensee from the Scottish company Resimation. And yes, it sells it in the United States, in North America, and the eventual users correct your honor. All the patents here have kind of specific parameters within which the method must be operated. Now, how could they sue you for infringement at all if you're not operating it? Because if you're not operating it, they don't know if you're operating it within the parameters, and they have to know the parameters to accuse you of infringement. They could sue us, your honor, under multiple periods. They could sue us for inducing infringements. If you are instructing someone to infringe the patent by practicing within the parameters. Do you do that? Well, we don't, because we don't think we're violating that the patent will be filed. But the point is, if you can't be sued for inducement, which is harder to prove than regular infringement, because you have to prove intent
. So you throw out inducement, which is more difficult, but you have the same basic facts that you don't operate. And nor do you instruct anyone to operate within the parameters of the claimed invention. Well, your honor, we do instruct the users, the funeral homes, on how to operate the equipment. I said we don't instruct them to operate within the parameters of the patent, because if we instructed them to operate within the parameters of the patent, we would be instructing them to infringe. We are a declaratory... The inducing, yes. So that you don't. So once again, there's no basis for them to sue you, right? And there's no basis for you to sue for declaratory judgment. Well, I disagree with your honor. We are indeed seeking a declaration of non-infringement
. And indeed, by the nature of that, we are saying you can operate these outside the parameters of the patent. What biosate is, say, they are pointing to certain parameters, specifically the temperature, the pH level, and the pressure. And they say, well, the funeral homes could dial it down a bit. And they're saying, well, we don't know how they'll actually operate. This is exactly, I submit, the case that, and the argument that was presented in the arrowhead case, where the arrowhead declaratory defendant said, we're not exactly sure how this is going to operate. So really, it has an ripen sufficient. And in that leading case, this court said that argument does not come with good grace, because you say you don't know how it will operate, but you knew enough to accuse the declaratory plaintiff, plaintiff of infringement. And in that regard, Your Honor, I respectfully direct the court to biosate councils February 2nd, 2009 letter, which went to Matthew's general council. And I asked, for the appendix, it begins on page 475 of the appendix. And in one of the opening paragraphs of that letter, biosate council says we have a bunch of patent and pending patent applications. For instance, the 580 patent, which talks about the letters of this, an alkaline hydrolysis process, that sets the temperature within a specified range, has a specified pH level, and takes place in a pressurized vessel. That's what biosate says about its patent
. Later in that same letter, discussing the process that Matthew's equipment will operate, it says in that letter, hey, your process also has a pressurized vessel. Your process will be at a certain temperature, same as ours. Your process will have a pH level, same as ours. That process is within our rights. So you better not use it. So there are arguments that we don't know what you are going to do, what these temperatures will be set at. You knew enough to make the out of the accusation. You knew enough to tell our customers not to buy it. So it too does not come with good grace. And in the arrowhead case, the court there said, is arrowhead a pre or post metamune case? It is a pre metamune case with even a stricter standard for granting declaratory relief. So our case would satisfy the stricter pre metamune standard, let alone be more lenient post metamune standard. So there is another illustrative case to the question that you are on appropriately raised
. Since no one has operated it yet, how could we have, how could we have, we have, we haven't sued anyone for direct inference. So you couldn't induce, right? The cat tech case. From recent cat tech involved to the extent that they were arguing about declaratory relief cat tech involved. Three configurations of a product that would employ a process that arguably would in French. It hadn't been commercially deployed. And the declaratory defendant said there cannot be in that instance absolute commercial deployment case or controversy for declaratory relief. The district court said that wasn't correct and this court affirmed and said, yes, there can be. This issue is properly joined. Even though there had been no commercial deployment of those three configurations in cat tech, just like here, we're biogen. And cat tech, each of the potential methods were infringing. Here, there's nothing in the record to say that there's anyone operating within the parameters of the claimed invention. We don't have any evidence that anyone is directly infringing the patent yet
. Well, the same holds true for the three configurations in cat tech. They hadn't been used in cat tech and get involved putting catalysts into tools. And they hadn't been used the eventual users as soon as they're used, they will in French. And that may or may not be the case in your situation, right? I don't think that was the case in cat tech either. I think after the district court assumed the declaratory jurisdiction, that court said there would that they have known infringement. And they said, yes, there's a grant of declaratory plaintiff relief. So just as in here, obviously, we are seeking a declaration of non-infringement. It cannot be imposed on us to prove that there would be infringement if it were actually used. In the arrowhead case, again, that passage talking about good grace, it has to be substantially similar. It has to be in the ballpark. It has to be arguable perhaps for there to be declaratory jurisdiction. We're seeking a declaration of non-infringement
. Obviously, we're not going to say, if this is deployed, it will in French. We're saying, if it's deployed, it's not going to in French. They are the ones who have joined the issue by going into the marketplace and telling others that this is going to cause an infringement. If you take this to its academic conclusion, parties in a similar circumstance, we're making it. You have a party selling a product that will deploy a process. It's ready to go to market. It's out there. But no one has yet used it. We're ready and willing to sell. A party in biosex position takes out advertisements in the Wall Street Journal, New York Times, in the USA to debt, and says, you better not buy that product. If you use it, it'll in French. That's wrong
. We don't figure it will in French, but they put that out there. They suppress all demand. No one ever buys it and no one ever deploys it. Then a party in Matthew's position would not be able to bring declaratory relief because no one would ever have used it. I think the illustrating the problem, a problem with the district court's decision is aside by side comparison of the state law claim versus the disposition of the federal court. On the state law side, the court accepts that they made accusations of infringement and says, okay, they made it. They told your customers it was infringing. It was objectively reasonable for them to do so. But no bad say. But no, so no bad say. So it's objectively reasonable. They are licensed to save this to you on the state law claim
. But now, side by side with the federal claims, the court says, we don't really know what will happen down the line. So you can't come in and challenge what they are licensed to say. This is a gaping hole, I submit, in the declaratory judgment jurisdiction. If they want to save the rebuttal time, Mr. Allen. I do, Your Honor. Thank you. Thank you, Mr. Brevisco. Yes. May I please the court's thoroughbred asking if they have to file a safe and digestor. The biggest problem they have in this case is that the court made a finding of fact the district court did at page 11 of the opinion the court says. Because the court finds the Matthew says not taking such steps as discussed below and then proceed in the succeeding pages. And I would particularly point to page 813 where the court says here, unlike cat tech, the parameters used in the operation of Matthew's devices are not subtle. That's a finding of fact by the district court that they have no showing that that's clearly a wrong use. And that was supported by the evidence. Bottom line problem here is, if you, I've read the cases, one of the hallmarks it seems to be more of the days the patent litigation is a claim chart. You know, you take the claims of the patent, you look at the accused device or method, what have you and you try to work it out. A lot of these cases claim charts actually get exchanged. In this case, we couldn't do a claim chart. The district court couldn't do a claim chart. Nobody can do a claim chart. We're not asking them to admit infringement. Of course, they're not going to admit that
. Because the court finds the Matthew says not taking such steps as discussed below and then proceed in the succeeding pages. And I would particularly point to page 813 where the court says here, unlike cat tech, the parameters used in the operation of Matthew's devices are not subtle. That's a finding of fact by the district court that they have no showing that that's clearly a wrong use. And that was supported by the evidence. Bottom line problem here is, if you, I've read the cases, one of the hallmarks it seems to be more of the days the patent litigation is a claim chart. You know, you take the claims of the patent, you look at the accused device or method, what have you and you try to work it out. A lot of these cases claim charts actually get exchanged. In this case, we couldn't do a claim chart. The district court couldn't do a claim chart. Nobody can do a claim chart. We're not asking them to admit infringement. Of course, they're not going to admit that. But at least as in cat tech show the court what it is you're going to be doing in cat tech, they provided the auto cat drawings of the parts. They said, here's exactly what we're going to do court and we don't think it infringes. We, when they filed their original complaint, we hit it with a motion dismissed immediately and said, this case is not right. Essentially same arguments. Instead of replying, they filed their amended complaint. So they knew where we were coming from. We were saying, this case isn't ready yet. And so if they really thought the case was ready, they could have come forward and said, here's all the information you need. Here's a claim chart. We say for element A, we don't in French because we're going to do it this way. If they do that, maybe we look at it and we say, we'll give you a covenant not to sue if that's what your plan is doing. But we don't know what they're going to do
. But at least as in cat tech show the court what it is you're going to be doing in cat tech, they provided the auto cat drawings of the parts. They said, here's exactly what we're going to do court and we don't think it infringes. We, when they filed their original complaint, we hit it with a motion dismissed immediately and said, this case is not right. Essentially same arguments. Instead of replying, they filed their amended complaint. So they knew where we were coming from. We were saying, this case isn't ready yet. And so if they really thought the case was ready, they could have come forward and said, here's all the information you need. Here's a claim chart. We say for element A, we don't in French because we're going to do it this way. If they do that, maybe we look at it and we say, we'll give you a covenant not to sue if that's what your plan is doing. But we don't know what they're going to do. And they leave this as a mystery that is this entire process. Now, at the heart of this, though, is allegations at least that you're in the marketplace suppressing their demand for their product. Is that sufficient to give rise to case or controversy? I don't think so, Your Honor, because the cases here talk about legal joining of the issues, that the controversy being. So as long as you don't issue a claim chart, you can write those advertisements in USA Today saying don't buy those Matthews products because they will in French. Let's be clear on this. This is an important point. In their initial complaint, they said we've accused everybody of infringement. By the way, there was nothing in USA today. They said, well, you accuse us of infringement and you accuse the customers of infringement. We came back and said under Twombliic Paul, for example, on the allegations that we've done something wrong in the marketplace, we said, well, what were the specific statements made? You can't just because the specific statements matter here. I think what was as the declaration show, and I think is the court even found if you read the court section on the Twombliic Volish and state law actions, is we were informing people that we had a patent. And if you operate the Matthews equipment in a certain way, you need to take our patents into consideration
. And they leave this as a mystery that is this entire process. Now, at the heart of this, though, is allegations at least that you're in the marketplace suppressing their demand for their product. Is that sufficient to give rise to case or controversy? I don't think so, Your Honor, because the cases here talk about legal joining of the issues, that the controversy being. So as long as you don't issue a claim chart, you can write those advertisements in USA Today saying don't buy those Matthews products because they will in French. Let's be clear on this. This is an important point. In their initial complaint, they said we've accused everybody of infringement. By the way, there was nothing in USA today. They said, well, you accuse us of infringement and you accuse the customers of infringement. We came back and said under Twombliic Paul, for example, on the allegations that we've done something wrong in the marketplace, we said, well, what were the specific statements made? You can't just because the specific statements matter here. I think what was as the declaration show, and I think is the court even found if you read the court section on the Twombliic Volish and state law actions, is we were informing people that we had a patent. And if you operate the Matthews equipment in a certain way, you need to take our patents into consideration. We don't know how they're going to operate. I think if you took out, we weren't saying don't buy the Matthews equipment. We're simply saying, if you buy the oven, we've got the recipe for the apple pie. Make cherry pies all you want. Just don't make our apple pie. And I think that's a different in character from what we're talking about. What we don't know is, are they planning to make apple pies or cherry pies? And they should have put forward. If they said, look, our customers are only going to make cherry pies, but it's okay. There's no issue with it. How can a patent keep provide the notice function in a real world sense if you can't save the people, I have a patent. And I think that's a different way to make that into account because I notice you're buying an oven. You could maybe think about making apple pies
. We don't know how they're going to operate. I think if you took out, we weren't saying don't buy the Matthews equipment. We're simply saying, if you buy the oven, we've got the recipe for the apple pie. Make cherry pies all you want. Just don't make our apple pie. And I think that's a different in character from what we're talking about. What we don't know is, are they planning to make apple pies or cherry pies? And they should have put forward. If they said, look, our customers are only going to make cherry pies, but it's okay. There's no issue with it. How can a patent keep provide the notice function in a real world sense if you can't save the people, I have a patent. And I think that's a different way to make that into account because I notice you're buying an oven. You could maybe think about making apple pies. If you think about making apple pies, take a look at our patent. You're going to make cherry pies, that's fine. The real point of this case is the word immediacy in the metamine case, which is what I think the district court came down. It said, look, you haven't settled in on whether you're going to make apple or cherry pies. Okay, the district court apparently, and why I say the character of what we said matters is, if you look at metamine, the totality of the circumstances, when you come in with a hundred and eighteen page claim chart, like some of the other cases had, obviously the battle is much more closely joined. Here in the totality of the circumstances, the fact that we've told some people, hey, make sure when you use this equipment, you don't use it according to our patents. That I think lowers the issue from that side. On the immediacy side, what the district court said was, your nine months from installing a machine, you haven't showed me settled parameters. Why don't we wait for this case? Why don't you install a machine? If you still think you have an issue then, bring your case down. And so I think when you look at a metamine and the totality of the circumstances and looking at the quality of the statements we were making, they're not very high quality states, even if you look at the letter, day 475, it doesn't really say we're accusing you of infringement. What we're doing here is we don't think we're going to be able to identify any of the biosafes patents is what we said. We don't say we know you're infringing
. If you think about making apple pies, take a look at our patent. You're going to make cherry pies, that's fine. The real point of this case is the word immediacy in the metamine case, which is what I think the district court came down. It said, look, you haven't settled in on whether you're going to make apple or cherry pies. Okay, the district court apparently, and why I say the character of what we said matters is, if you look at metamine, the totality of the circumstances, when you come in with a hundred and eighteen page claim chart, like some of the other cases had, obviously the battle is much more closely joined. Here in the totality of the circumstances, the fact that we've told some people, hey, make sure when you use this equipment, you don't use it according to our patents. That I think lowers the issue from that side. On the immediacy side, what the district court said was, your nine months from installing a machine, you haven't showed me settled parameters. Why don't we wait for this case? Why don't you install a machine? If you still think you have an issue then, bring your case down. And so I think when you look at a metamine and the totality of the circumstances and looking at the quality of the statements we were making, they're not very high quality states, even if you look at the letter, day 475, it doesn't really say we're accusing you of infringement. What we're doing here is we don't think we're going to be able to identify any of the biosafes patents is what we said. We don't say we know you're infringing. In fact, in their response letter, which is at, you're getting through all these exhibits here, they basically said that we don't even see if you're accusing us of infringement. And that's in the record. I don't have the site handy, but it's in Mr. Murvers' declaration, which is at a 199. He attaches their response letter, which is, oh, here it is. It's March 16, 2009. They have a false advertising section. They have a paper and prints section. But on the patent issue, they say... 8224? Yes
. In fact, in their response letter, which is at, you're getting through all these exhibits here, they basically said that we don't even see if you're accusing us of infringement. And that's in the record. I don't have the site handy, but it's in Mr. Murvers' declaration, which is at a 199. He attaches their response letter, which is, oh, here it is. It's March 16, 2009. They have a false advertising section. They have a paper and prints section. But on the patent issue, they say... 8224? Yes. While your letter makes vague general references to certain patent claims and presses parameters, your allegations are so vague and incomplete that we are frankly at a loss to respond. So the quality of the quote allegations of infringement here should be taken into account with the Italian circumstances. These are not the type of allegations of infringement that I think you have to jump up to. These were not full-page ads in USA today. I think if we were taking full-page ads in USA today, they might heighten that side of it, but we didn't do that. And letters like this to kind of glance off the issue, I think the totality of some circumstances, when combined with the fact that the district court finds that their parameters aren't settled, and that's a finding of fact that's not clearly erroneous, I say, but it rotates for a firm answer with this court decision. There are no more questions. I'll see you at the next one. Thank you, Mr. Breviscoose. Thank you. Mr
. While your letter makes vague general references to certain patent claims and presses parameters, your allegations are so vague and incomplete that we are frankly at a loss to respond. So the quality of the quote allegations of infringement here should be taken into account with the Italian circumstances. These are not the type of allegations of infringement that I think you have to jump up to. These were not full-page ads in USA today. I think if we were taking full-page ads in USA today, they might heighten that side of it, but we didn't do that. And letters like this to kind of glance off the issue, I think the totality of some circumstances, when combined with the fact that the district court finds that their parameters aren't settled, and that's a finding of fact that's not clearly erroneous, I say, but it rotates for a firm answer with this court decision. There are no more questions. I'll see you at the next one. Thank you, Mr. Breviscoose. Thank you. Mr. Brown? Mr. Baravuzko talked about the February 2, 2009 letter and said, well, look, we didn't really say patent infringement in so many words. We didn't send claims chart. This court has heard similar arguments multiple times. And again, in Arrowhead, more recently in Arras and in HP Acceleron, this court has said, look, we know lawyers can be crafty. In fact, the court has said, no competent counsel may send a claims chart in the circumstance. But if the issue is joined, if someone suggests that there's patent infringement, that is enough to create a case of controversy. And on the USA Today advertising, yes, of course they haven't done that. But I'll tell you, going to steward enterprises, calling them for a meeting to Indiana to buy a safe office and telling them you better not buy the patents, that better not buy the products from Matthews because they infring our patents. That has close to the same effect on us. That's the largest buyer. So you can't, I submit, by a say, it can't be immunized from going to the marketplace, suppressing the demand for our product and saying, well, no one's used it yet
. Brown? Mr. Baravuzko talked about the February 2, 2009 letter and said, well, look, we didn't really say patent infringement in so many words. We didn't send claims chart. This court has heard similar arguments multiple times. And again, in Arrowhead, more recently in Arras and in HP Acceleron, this court has said, look, we know lawyers can be crafty. In fact, the court has said, no competent counsel may send a claims chart in the circumstance. But if the issue is joined, if someone suggests that there's patent infringement, that is enough to create a case of controversy. And on the USA Today advertising, yes, of course they haven't done that. But I'll tell you, going to steward enterprises, calling them for a meeting to Indiana to buy a safe office and telling them you better not buy the patents, that better not buy the products from Matthews because they infring our patents. That has close to the same effect on us. That's the largest buyer. So you can't, I submit, by a say, it can't be immunized from going to the marketplace, suppressing the demand for our product and saying, well, no one's used it yet. Thank you. Thank you, Mr. Allen. That concludes our meeting. All right. The honorable court is adjourned until tomorrow morning. It's going to clock 8 AM.
Oh, verses. Just grow along when you're ready. Good morning and may it please the court. My name is Kevin Allen. I represent the appellant Matthews International Corporation. The district court here concluded that there was not a case or controversy. Suffice to vest the district court with jurisdiction. That decision was erroneous and Matthews requests respectfully that this court reversed. This case involves express allegations of infringement. This case involves an immediate and real controversy of a substantial nature between parties with an adverse legal interest. Not only does the district court's decision conflict with certain decisions from this court and certain precedent from this court, it conflicts with leading precedent and very recent decisions on the subject of declaratory relief. For instance, just a few months ago in 3M versus Avery, this court held that if a party had actually been charged, with infringement, there is necessarily a case or controversy. That holding from 3M echoes the same holding from this court and what may be the leading decision on declaratory judgment jurisdiction, the arrowhead case. So if you have express allegations of infringement, this court has said no further inquiry is necessary. Here, there are express allegations of infringement. And not only that, it's by high ranking officials. The record clearly reflects that the then president of biosafes called the North American division president for Matthews, after Matthews announced that it would be selling these products at issue. And biosafes then president said, hey, Matthews, your product and the process that it employs will violate our patents. You're talking about December 31, 08. Yes, it's cool. And then later at a trade show, the president of the cremation division of Matthews is at the trade show as is the then president of biosafes. And again, that gentleman from biosafes approaches Matthews president and says again, bio cremation, Matthews product infringes our patent. Those accusations are not just made directly to senior officials from senior officials. Biosafes may be accusations to potential customers. Most importantly, or most illustriatively, biosafes may be accusations to perhaps the company that could be the largest purchaser of Matthews equipment. Stewart Enterprises is a nationwide owner of funeral homes. Funeral homes are the buyers of these products. Stewart, Matthews doesn't operate any equipment, right? That's correct, you're right. Matthews is a tribute equipment that's made in Scotland, right? It is the licensee from the Scottish company Resimation. And yes, it sells it in the United States, in North America, and the eventual users correct your honor. All the patents here have kind of specific parameters within which the method must be operated. Now, how could they sue you for infringement at all if you're not operating it? Because if you're not operating it, they don't know if you're operating it within the parameters, and they have to know the parameters to accuse you of infringement. They could sue us, your honor, under multiple periods. They could sue us for inducing infringements. If you are instructing someone to infringe the patent by practicing within the parameters. Do you do that? Well, we don't, because we don't think we're violating that the patent will be filed. But the point is, if you can't be sued for inducement, which is harder to prove than regular infringement, because you have to prove intent. So you throw out inducement, which is more difficult, but you have the same basic facts that you don't operate. And nor do you instruct anyone to operate within the parameters of the claimed invention. Well, your honor, we do instruct the users, the funeral homes, on how to operate the equipment. I said we don't instruct them to operate within the parameters of the patent, because if we instructed them to operate within the parameters of the patent, we would be instructing them to infringe. We are a declaratory... The inducing, yes. So that you don't. So once again, there's no basis for them to sue you, right? And there's no basis for you to sue for declaratory judgment. Well, I disagree with your honor. We are indeed seeking a declaration of non-infringement. And indeed, by the nature of that, we are saying you can operate these outside the parameters of the patent. What biosate is, say, they are pointing to certain parameters, specifically the temperature, the pH level, and the pressure. And they say, well, the funeral homes could dial it down a bit. And they're saying, well, we don't know how they'll actually operate. This is exactly, I submit, the case that, and the argument that was presented in the arrowhead case, where the arrowhead declaratory defendant said, we're not exactly sure how this is going to operate. So really, it has an ripen sufficient. And in that leading case, this court said that argument does not come with good grace, because you say you don't know how it will operate, but you knew enough to accuse the declaratory plaintiff, plaintiff of infringement. And in that regard, Your Honor, I respectfully direct the court to biosate councils February 2nd, 2009 letter, which went to Matthew's general council. And I asked, for the appendix, it begins on page 475 of the appendix. And in one of the opening paragraphs of that letter, biosate council says we have a bunch of patent and pending patent applications. For instance, the 580 patent, which talks about the letters of this, an alkaline hydrolysis process, that sets the temperature within a specified range, has a specified pH level, and takes place in a pressurized vessel. That's what biosate says about its patent. Later in that same letter, discussing the process that Matthew's equipment will operate, it says in that letter, hey, your process also has a pressurized vessel. Your process will be at a certain temperature, same as ours. Your process will have a pH level, same as ours. That process is within our rights. So you better not use it. So there are arguments that we don't know what you are going to do, what these temperatures will be set at. You knew enough to make the out of the accusation. You knew enough to tell our customers not to buy it. So it too does not come with good grace. And in the arrowhead case, the court there said, is arrowhead a pre or post metamune case? It is a pre metamune case with even a stricter standard for granting declaratory relief. So our case would satisfy the stricter pre metamune standard, let alone be more lenient post metamune standard. So there is another illustrative case to the question that you are on appropriately raised. Since no one has operated it yet, how could we have, how could we have, we have, we haven't sued anyone for direct inference. So you couldn't induce, right? The cat tech case. From recent cat tech involved to the extent that they were arguing about declaratory relief cat tech involved. Three configurations of a product that would employ a process that arguably would in French. It hadn't been commercially deployed. And the declaratory defendant said there cannot be in that instance absolute commercial deployment case or controversy for declaratory relief. The district court said that wasn't correct and this court affirmed and said, yes, there can be. This issue is properly joined. Even though there had been no commercial deployment of those three configurations in cat tech, just like here, we're biogen. And cat tech, each of the potential methods were infringing. Here, there's nothing in the record to say that there's anyone operating within the parameters of the claimed invention. We don't have any evidence that anyone is directly infringing the patent yet. Well, the same holds true for the three configurations in cat tech. They hadn't been used in cat tech and get involved putting catalysts into tools. And they hadn't been used the eventual users as soon as they're used, they will in French. And that may or may not be the case in your situation, right? I don't think that was the case in cat tech either. I think after the district court assumed the declaratory jurisdiction, that court said there would that they have known infringement. And they said, yes, there's a grant of declaratory plaintiff relief. So just as in here, obviously, we are seeking a declaration of non-infringement. It cannot be imposed on us to prove that there would be infringement if it were actually used. In the arrowhead case, again, that passage talking about good grace, it has to be substantially similar. It has to be in the ballpark. It has to be arguable perhaps for there to be declaratory jurisdiction. We're seeking a declaration of non-infringement. Obviously, we're not going to say, if this is deployed, it will in French. We're saying, if it's deployed, it's not going to in French. They are the ones who have joined the issue by going into the marketplace and telling others that this is going to cause an infringement. If you take this to its academic conclusion, parties in a similar circumstance, we're making it. You have a party selling a product that will deploy a process. It's ready to go to market. It's out there. But no one has yet used it. We're ready and willing to sell. A party in biosex position takes out advertisements in the Wall Street Journal, New York Times, in the USA to debt, and says, you better not buy that product. If you use it, it'll in French. That's wrong. We don't figure it will in French, but they put that out there. They suppress all demand. No one ever buys it and no one ever deploys it. Then a party in Matthew's position would not be able to bring declaratory relief because no one would ever have used it. I think the illustrating the problem, a problem with the district court's decision is aside by side comparison of the state law claim versus the disposition of the federal court. On the state law side, the court accepts that they made accusations of infringement and says, okay, they made it. They told your customers it was infringing. It was objectively reasonable for them to do so. But no bad say. But no, so no bad say. So it's objectively reasonable. They are licensed to save this to you on the state law claim. But now, side by side with the federal claims, the court says, we don't really know what will happen down the line. So you can't come in and challenge what they are licensed to say. This is a gaping hole, I submit, in the declaratory judgment jurisdiction. If they want to save the rebuttal time, Mr. Allen. I do, Your Honor. Thank you. Thank you, Mr. Brevisco. Yes. May I please the court's thoroughbred asking if they have to file a safe and digestor. The biggest problem they have in this case is that the court made a finding of fact the district court did at page 11 of the opinion the court says. Because the court finds the Matthew says not taking such steps as discussed below and then proceed in the succeeding pages. And I would particularly point to page 813 where the court says here, unlike cat tech, the parameters used in the operation of Matthew's devices are not subtle. That's a finding of fact by the district court that they have no showing that that's clearly a wrong use. And that was supported by the evidence. Bottom line problem here is, if you, I've read the cases, one of the hallmarks it seems to be more of the days the patent litigation is a claim chart. You know, you take the claims of the patent, you look at the accused device or method, what have you and you try to work it out. A lot of these cases claim charts actually get exchanged. In this case, we couldn't do a claim chart. The district court couldn't do a claim chart. Nobody can do a claim chart. We're not asking them to admit infringement. Of course, they're not going to admit that. But at least as in cat tech show the court what it is you're going to be doing in cat tech, they provided the auto cat drawings of the parts. They said, here's exactly what we're going to do court and we don't think it infringes. We, when they filed their original complaint, we hit it with a motion dismissed immediately and said, this case is not right. Essentially same arguments. Instead of replying, they filed their amended complaint. So they knew where we were coming from. We were saying, this case isn't ready yet. And so if they really thought the case was ready, they could have come forward and said, here's all the information you need. Here's a claim chart. We say for element A, we don't in French because we're going to do it this way. If they do that, maybe we look at it and we say, we'll give you a covenant not to sue if that's what your plan is doing. But we don't know what they're going to do. And they leave this as a mystery that is this entire process. Now, at the heart of this, though, is allegations at least that you're in the marketplace suppressing their demand for their product. Is that sufficient to give rise to case or controversy? I don't think so, Your Honor, because the cases here talk about legal joining of the issues, that the controversy being. So as long as you don't issue a claim chart, you can write those advertisements in USA Today saying don't buy those Matthews products because they will in French. Let's be clear on this. This is an important point. In their initial complaint, they said we've accused everybody of infringement. By the way, there was nothing in USA today. They said, well, you accuse us of infringement and you accuse the customers of infringement. We came back and said under Twombliic Paul, for example, on the allegations that we've done something wrong in the marketplace, we said, well, what were the specific statements made? You can't just because the specific statements matter here. I think what was as the declaration show, and I think is the court even found if you read the court section on the Twombliic Volish and state law actions, is we were informing people that we had a patent. And if you operate the Matthews equipment in a certain way, you need to take our patents into consideration. We don't know how they're going to operate. I think if you took out, we weren't saying don't buy the Matthews equipment. We're simply saying, if you buy the oven, we've got the recipe for the apple pie. Make cherry pies all you want. Just don't make our apple pie. And I think that's a different in character from what we're talking about. What we don't know is, are they planning to make apple pies or cherry pies? And they should have put forward. If they said, look, our customers are only going to make cherry pies, but it's okay. There's no issue with it. How can a patent keep provide the notice function in a real world sense if you can't save the people, I have a patent. And I think that's a different way to make that into account because I notice you're buying an oven. You could maybe think about making apple pies. If you think about making apple pies, take a look at our patent. You're going to make cherry pies, that's fine. The real point of this case is the word immediacy in the metamine case, which is what I think the district court came down. It said, look, you haven't settled in on whether you're going to make apple or cherry pies. Okay, the district court apparently, and why I say the character of what we said matters is, if you look at metamine, the totality of the circumstances, when you come in with a hundred and eighteen page claim chart, like some of the other cases had, obviously the battle is much more closely joined. Here in the totality of the circumstances, the fact that we've told some people, hey, make sure when you use this equipment, you don't use it according to our patents. That I think lowers the issue from that side. On the immediacy side, what the district court said was, your nine months from installing a machine, you haven't showed me settled parameters. Why don't we wait for this case? Why don't you install a machine? If you still think you have an issue then, bring your case down. And so I think when you look at a metamine and the totality of the circumstances and looking at the quality of the statements we were making, they're not very high quality states, even if you look at the letter, day 475, it doesn't really say we're accusing you of infringement. What we're doing here is we don't think we're going to be able to identify any of the biosafes patents is what we said. We don't say we know you're infringing. In fact, in their response letter, which is at, you're getting through all these exhibits here, they basically said that we don't even see if you're accusing us of infringement. And that's in the record. I don't have the site handy, but it's in Mr. Murvers' declaration, which is at a 199. He attaches their response letter, which is, oh, here it is. It's March 16, 2009. They have a false advertising section. They have a paper and prints section. But on the patent issue, they say... 8224? Yes. While your letter makes vague general references to certain patent claims and presses parameters, your allegations are so vague and incomplete that we are frankly at a loss to respond. So the quality of the quote allegations of infringement here should be taken into account with the Italian circumstances. These are not the type of allegations of infringement that I think you have to jump up to. These were not full-page ads in USA today. I think if we were taking full-page ads in USA today, they might heighten that side of it, but we didn't do that. And letters like this to kind of glance off the issue, I think the totality of some circumstances, when combined with the fact that the district court finds that their parameters aren't settled, and that's a finding of fact that's not clearly erroneous, I say, but it rotates for a firm answer with this court decision. There are no more questions. I'll see you at the next one. Thank you, Mr. Breviscoose. Thank you. Mr. Brown? Mr. Baravuzko talked about the February 2, 2009 letter and said, well, look, we didn't really say patent infringement in so many words. We didn't send claims chart. This court has heard similar arguments multiple times. And again, in Arrowhead, more recently in Arras and in HP Acceleron, this court has said, look, we know lawyers can be crafty. In fact, the court has said, no competent counsel may send a claims chart in the circumstance. But if the issue is joined, if someone suggests that there's patent infringement, that is enough to create a case of controversy. And on the USA Today advertising, yes, of course they haven't done that. But I'll tell you, going to steward enterprises, calling them for a meeting to Indiana to buy a safe office and telling them you better not buy the patents, that better not buy the products from Matthews because they infring our patents. That has close to the same effect on us. That's the largest buyer. So you can't, I submit, by a say, it can't be immunized from going to the marketplace, suppressing the demand for our product and saying, well, no one's used it yet. Thank you. Thank you, Mr. Allen. That concludes our meeting. All right. The honorable court is adjourned until tomorrow morning. It's going to clock 8 AM