Asses sing Personal jurisdiction in PatentS

By at ianiel B runo

r personcially true of patent litigation involving v_. ious icveisof development, manufacturing, marketing, or sale ofallegedly infringing products in the forum. Foreigncompanies, while seeking the benefits of selling theirproducts in the United States, often go to great lengthsto structure their activities to avoid being sued in theUnited States. It is therefore important to understandthe legal context in which decisions regarding personaljurisdiction are made.

This article describes the basic legal framework usedto analyze personal jurisdiction in patent litigationactions, with focus on particular factual scenarios thatare commonly encountered.'

The Federal Cir°cuit9s Personaljurisdiction Paradigm

Personal jurisdiction involves whether a court hasthe power and authority to bring certain persons (i.e.,defendants) into its adjudicative process.2 At its core, thequestion of personal jurisdiction is governed by the dueprocess clause of the US Constitution. Accordingly, thebasic jurisprudence of personal jurisdiction is foundedin decisions of the US Supreme Court. In patent cases,the law of the Federal Circuit interprets and supple-ments the Supreme Court jurisprudence on matters ofpersonal jurisdiction in the context of the factual situa-tions associated with infringement actions.3

Federal Circuit law requires two basic inquiries whendetermining whether personal jurisdiction exists. First, aplaintiff must determine whether the defendant wouldbe amenable to service of process under the forum state's

Nathaniel Bruno is an attorney in the San Francisco office ofSheppard Mullin LLP, where he focuses on intellectual propertylitigation. He can be contacted at nbruno@sheppardmullin.com .

ue

process limits, such that the first and second inqui-ries collapse into one. In other words, many states(such as California,6 Nevada,' Washington,8 Nebraska,9Minnesota,10 and Missouri']) exercise long-arm juris-

diction to the extent it is permissible under the federalConstitution. However, the long-arm statutes of certainstates (such as Ohio'2 and New York73) are narrowerthan federal constitutional limits. Accordingly, a reviewof a state's jurisdictional law is crucial when analyzingwhether personal jurisdiction over an accused infringerexists in the state.

Once the reach of state jurisdictional law is estab-lished, the basic federal constitutional standards articu-lated in International Shoe Co. a Washington14 and itsprogeny determine whether the exercise of personal

jurisdiction comports with federal due process.lsInternational Shoe and subsequent cases establish atwo-part test. First, the court looks to whether thedefendant has sufficient minimum contacts with theforum state.16 Second, the court looks to whetherother considerations suggest that the exercise of juris-diction would violate traditional notions of "fair playand substantial justice," which is essentially an inquiryinto whether the exercise of jurisdiction would beunreasonable. 17

General jurisd ictionPersonal jurisdiction over a defendant can be

either general or specific.18 General jurisdiction is

jurisdiction over a defendant with respect to a legalclaim that is unrelated to the defendant's particularcontacts with the state.19 Due process permits theexercise of general jurisdiction when a defendant'scontacts with the relevant forum state are continuousand systematic.20 Usually, general jurisdiction requires

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the defendant to maintain some sort of office orce of business in the forum state. The traditional-'cia of general jurisdiction are "a home base, an

service of process, a local office, or the pur-su.. -. c _ of a business from a tangible locale within thestate."71 General jurisdiction also may be established

sales of - -

and broad distributiongal

:h

they a,-iount to "substa:^1: ai or "couanuous andsystematic" -ammercial activity in the forum.23

If general jurisdiction is established, the action mayproceed without any further inquiry into case-specificcontacts.

Specific jurisd ict ionAbsent general jurisdiction, specific jurisdiction may

e^^- st with r(,.)ect to claims arising from or related to a's

r contacts with the state.24 For specificisdic ion, s:--Jicient minimum contacts exist when

t_., plaintiff c..n show that the defendant "has purpose-fully directed his activities at residents of the forum andthe litigation results from alleged injuries that arise outof or relate to those activities.." -5 Specific jurisdictionmay exist based on a single contact with the forum stateif the claim arises directly from the particular contact.Typical examples are a tort committed within the forumstate or a contract with a substantial connection to theforum state.26 "Random," "fortuitous," or "attenuated"contacts do not count in the minimum contacts analysis,nor do contacts arising from the "unilateral activity" ofothers.27 Petitioning the national government also doesnot count as a contact for the personal jurisdiction anal-ysis (known as the government contacts exception).28

The "reasonableness" criteria of "fair play and sub-stantial justice" also must be satisfied, with the defendantbearing the burden of demonstrating the unreasonable-ness of the forum.29

Synthesizing the relevant law, the Federal Circuitemploys a three-factor test to determine whetherspecific jurisdiction exists in patent cases:

1. Whether the defendant "purpose y directed" itsactivities at residents of the forum;

2. Whether the claim "arises out of or relates to" thedefendant's activities in the forum; and

Licenses and Cease-sand-Desist LettersPurposeful direction is often found based on a

party's negotiations and license agreements with par-ties in the forum, or cease and desist letters to partieswithin a forum state, or both. For example, in one case,

Breckenridge Pharmaceutical, Inc, a Metabolite Laboratories,Inc-32 the Federal Circuit found jurisdiction over adeclaratory judgment defendant who had sent cease-and-desist letters and entered into an exclusive licensewith a company conducting business in the forumstate that included significant rights with respect tothe patent. In another case, Electronics For Imaging, Inc. v.Coyle,33 the Federal Circuit found a declaratory judg-ment defendant's acts of hiring a California attorneywho contacted plaintiff at various times to report onthe status of a pending patent application, sending tworepresentatives to California to demonstrate the tech-nology underlying what later became the patent-in-suit, and telephoning plaintiff several times regardingthe subject matter of the patent-in -suit amounted topurposeful direction at California. In I)eprenyl AnimalHealth, Inc. a The L'. of Toronto Innovations Foundation,34purposeful direction was found when a Canadiandeclaratory judgment defendant company used lettersand phone calls to negotiate a licensing agreementwith a Kansas-based company, its President twice trav-eled to Kansas to negotiate and amend the agreement,and the Canadian company kept the Kansas companyapprised of correspondence regarding prosecution ofthe patent and sent a letter regarding enforcement ofthe license.

Purposeful direction -vas also found in Inamed Corp.u Kuzmak,35 where a New Jersey resident patentee (adeclaratory judgment defendant) negotiated four license

Eir"30

^r the exercise of jurisdiction is " ad

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Eagreements via telephone or mail with California resi-dents, traveled to California once for a get-acquainted

sic - , ^ i ' - it a cease-and-desist otter to the agent ofipany. In Id _

`"orp. iJ TFI; Inc.,36

Led that an < free -dent of the parties-#°r }o &-,n? ite allegedly infringing

:cal cable televisionaction.

n

jurisdiction was estabhshe ` when the declaratory judg-ment defendant had an exclusive distribution agree-ment with a company that conducted business and soldallegedly infringing products in the forum state and hadpreviously done business and made sales in the stateitsel£39The US Supreme Court in McGee v Intl. Life Ins.C0.40 decided that even a single contact with a forumstate, such as issuing an insurance policy to a forumstate resident, may suffice for personal jurisdiction ifit is substantially related to the plaintiff's claim. In fact,jurisdiction may depend on whether the defendant hasa pattern and practice of placing infringing productsinto the stream of commerce through an establisheddistribution channel with full awareness that substan-tial quantities of the products are being shipped intothe forum state. Plaintiffs have successfully establishedjurisdiction in states where a significant quantity of theproducts has been shipped. For example, in Beverly HillsFan Co. v Royal Sovereign Corp.,41 the Federal Circuitfound jurisdiction under the stream-of-commerce the-ory when the defendants shipped the allegedly infring-ing products into the forum state through an establisheddistribution channel. In Viam Corp. v. Iowa Export-ImportTrading Co.,¢2 jurisdiction was found under the stream-of-commerce theory when a foreign defendant estab-lished a regular distribution channel through whichit purposely directed its products through a statesideintermediary. Substantial sales in a state supports a claimthat an infringer is purposefully availing itself of thebenefits of that market and laws and should be requiredto answer for its infringement in that forum.43

Internet-Based CommerceCommerce in a forum state accomplished through

the Internet also may be sufficient to establish personal

jurisdiction. As in the general jurisdiction context,contacts arising from Internet-base '. activities andcommerce must be c !dered i c

on wit' tospecific jurisdictie

r Mere! operatin-siv `^.e., informatic- .-_aly) Web site appears not tobe e-ugh, by itself.

---ort personal jurisdiction.44. I

e;

_sect y

plead carefully, and _eienda, _ts must attack =recta

Arising Out of

elating °T®The arising-out-of-or-relating-to prong of the

specific personal jurisdiction analysis is interpreteddisjunctively and with flexibility and latitude.48 Again,Federal Circuit decisions provide many examplesof claims that arise out of or relate to a defendant'sforum-related contacts.

Patent-Related ActivitiesActivities by a party in a forum state related to

the relevant patent(s) will generally suffice to satisfythe relatedness prong. For example, in Electronics forImaging,49 the declaratory judgment claim of pat-ent invalidity was related to communications anda visit to the forum state concerning the technol-ogy underlying the patent-in-suit. In Deprenyl,50 adeclaratory judgment suit for non-applicability ofpatent license and invalidity of patent was directlyrelated to defendant's contacts in negotiating the pat-ent license agreement. The court in Inamed51 foundthat a declaratory judgment action claiming non-infringement and patent misuse arose from or relatedto contacts in negotiating license agreements regard-ing the patents-in-suit and sending a cease-and-desistinfringement letter. In Akro,52 a declaratory judgmentclaim of invalidity and unenforceability of a patentwas related to the defendant's contact of granting anexclusive license on that patent to plaintiff's competi-tor in the forum state.53 However, personal jurisdic-tion was rejected in Pennington Seed, Inc. v. Prod. Exch.No. 29954 because the complaint lacked sufficientallegations of minimum contacts, including on thearising-out-of-or-relating-to prong. In HollyAnne

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Corp.,75 the court found that a mere offer to donateis not an offer to sell and cannot give rise to a causeof action.

It is clear from these cases that lack of actual salesor direct infringement in a forum is not generallyfatal to personal jurisdiction. Under the FederalC

the ,1^,fendant hay no other forum state contacts. InBurnham a Superior Court,58 the Supreme Court unani-mously upheld the constitutionality of jurisdictionbased on service of process on a nonresident temporar-ily present in the state.59 The defendant, a New Jerseyresident present in California on business and to visithis children, was served with a summons in a divorceaction seeking child support.60 Four justices stated thatthe physical presence of an individual within the state(regardless of minimum contacts) is a constitutionallysufficient basis for general jurisdiction.61 Four justicesconcurred only in the result, expressing the view thatthe minimum contacts and reasonableness analysis muststill be applied when a transient nonresident is servedwith process in a forum state.62 One justice concurredin the result but did not join either rationale, viewingboth as unnecessarily broad.63

Burnham did not conclusively resolve the issue ofwhether service of process in a state is enough byitself to always confer personal jurisdiction. Moreover,Burnham dealt with service on a natural person, andthere is case law holding that the same rule shouldnot apply to corporations. For example, in Siemer u

Learjet Acquisition Corp.,64 no general jurisdiction wasfound based on service of a corporation's registeredagent in a forum state. In United States a Nippon PaperIndustries Co., Ltd.,65 the court held that "[M]ere serviceof process on an agent or officer of an alien corpora-tion within the United States does not without moreestablish the jurisdiction of a federal court over an aliencorporation."

Other courts have held that service on a corporatemanaging agent present in the forum state shouldsuffice to confer personal jurisdiction, particularlywhen there are more contacts than simply a random

forum presence unrelated to the lawsuit. The courtin Northern Light Tech., Inc. a Northern Light r'" ^b66found that service of a foreign corporation'swas sufficient to confer jurisdiction over the co-. ra-tion when the officer was in the forum to attend arelated court proceeding. In Oyuela a Seacor,67 whichheld tbnf --v

over ^ 3g;ia

officer

_'ederal Ciadc- __' the issue

any event, ii.,^ order to (:)nfer jurisdiction pursuant totransient jurisdiction, the service must of course beeffective according to appropriate laws and rules.68 If itis, personal service on a defendant present in a forummay at least be another ground plaintiffs can point towhen attempting to establish jurisdiction in patentlitigation actions.

ReasonablenessOnce sufficient minimum contacts have been shown,

it becomes the defendant's burden of proof to defeatspecific personal jurisdiction by presenting a "compel-ling case that that the presence of some other con-siderations would render jurisdiction unreasonable."69When sufficient minimum contacts exist, a finding ofunreasonableness is "rare."70 The Federal Circuit assessesthe five factors originally set forth in Burger King whenmaking the reasonableness determination:

1. The burden on the defendant;

2. The interests of the forum state in adjudicating thedispute;

3. The plaintiff's interest in obtaining convenient andeffective relief,

4. The interstate judicial system's interest in obtainingthe most efficient resolution of controversies; and

5. The shared interest of the several states in furtheringfundamental substantive social policies.71

In one case involving a Japanese defendant, theUS Supreme Court held personal jurisdiction to be

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u"--easonable in California.72 The Asahi decision wasc } the following facts:

he only claim was ar _ c^ tion cross-

complaint by a Taiwanese corporation against theJap use defend.: r, raking the interests of Ca''-

Fc

>ns

is

ang carein asserting jurisdiction sent greater interests by theplaintiff and California. 73

Asahi can potentially be distinguished on its particu-lar facts in many instances. If a suit involves a plaintiffbased in the United States, seeking redress under USlaw for products promoted in and which end up beingsold in the United States, those facts would tend todistinguish Asahi and suggest the reasonableness ofjurisdiction. Moreover, in the nearly 20 years sinceAsahi was decided, the level of global commerce andcommunication has expanded dramatically. What wasconsidered unreasonable by the Supreme Court in1987 might not seem unreasonable today.

Perhaps most importantly, Federal Circuit decisionsoften refuse to find that personal jurisdiction is unrea-sonable once minimum contacts are demonstrated,applying the five reasonableness factors individually orin total. 74 Then again, a line of Federal Circuit decisionsexists holding against the exercise of personal jurisdic-tion based on an apparent concern for overall due pro-cess and reasonableness, particularly in the declaratoryjudgment context. In Silent Drive, Inc. a Strong Indus.,Inc.,75 no jurisdiction was found over a declaratoryjudgment defendant that sent cease-and-desist lettersinto a forum state that primarily involved a legal disputeunrelated to the relevant patent. Similarly, in Hildebrandu Steck Mfg.,76 jurisdiction was not permitted over adeclaratory judgment defendant that sent cease-and-desist letters into a forum state and had unsuccessfullyattempted to negotiate license agreements there. TheFederal Circuit, in Red Wing Shoe Co. v Kockerson-Halberstadt, Inc.,77 found no jurisdiction over a declara-tory judgment defendant that sent cease-and-desistletters into a forum state and had successfully licensed

the relevant patent to 34 non-exclusive licensees there,but did not exercise contr€ l over the licensees' activitiesand had no dealings 1 ' -'ern beyond the receipt ofroyalties.

Considering the five reasonableness factors and they Federal Circuit decisions applying the _, plaintiffs

patent infringement plaintiffs and defendants can obtaina better grasp of the arguments they must make to sup-port or defeat jurisdiction in their particular lawsuits.Which highlights an important truth about patent lawin general: Knowing how to enforce a patent is just asimportant as knowing how to obtain one.

NotesI . In recent years it has been largely unnecessary to assess the

issue of venue separately from personal jurise- on. Undercurrent law, venue in a patent infringement a: )roperin any district where personal jurisdiction v. _:,i! - --old. See

28 U.S.C. g 1391 (b-c); VE Holding Corp. v. Johnson GasAppliance Co., 917 F.2d 1574, 1580 (Fed. Cit. 1990). Thecurrently pending 2007 Patent Reform Act would signifi-cantly change venue requirements in patent cases to addressa perceived problem with forum shopping. Specifically, thelaw would be amended to specify that venue in a patentinfringement action (other than a declaratory judgment ac-tion or an action seeking review of a decision by the Boardof Patent Appeals and Interferences) lies only in a districtwhere either party resides or where the defendant has com-mitted acts of infringement and has a regular place of busi-

ness. A corporation would "reside" only where its principalplace of business is located or where it is incorporated. Thepurpose of this proposal is to sharply reduce the numberof places venue will lie. It appears, however, the rule that

foreign companies are deemed to reside in any district willnot be changed, and so the amendment would not affect thechoice of venue when the defendant is a foreign company.In such cases, the issue of personal jurisdiction will continueto be controlling as to the situs of suit. It will be importantto chart the progress of the 2007 Patent Reform Act so thatlitigants in future patent infringement actions can conduct anappropriate assessment of venue, which may need to bedistinct from the personal jurisdiction analysis.

i not bead it

°s

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Volume 19 - Number I I - November 2007

2. See Black's Law Dictionary 870 (8th ed., West 2004).3. Silent Drive, Inc. v. Strong Indus., Inc., 326 E3d 1194, 1201

(Fed. Cir. 20031; Hildebrand v. Steck Mfg. Co., Inc., 279 E3d1351, 1354 (Fed. Cir. 2002).

4. Pennington Seed, Inc. v. Prod. Exch. No. 299,457 E3d 1334,1343-1344 (Fed. Cir. 2006).

5. See ' -nt Drive- '

Fad at 1200-01:

tronics for

0 F3d 134

-_.d. Cir.

is I , pl.

_ . v. C,c::- _ ent Cor,.,

1458 (Fed. Cit. 1997).9. HollyAnne Corp. v.TFT, Inc., 199 E3d 1304,1307 (Fed. Cit.

1999).10. Red Wing Shoe Co. v. Kockerson-Halberstadt, Inc., 148 EM

1355, 1358 (Fed. Cit. 1998).11. Pennington Seed, 457 Fad at 1344.12. Hildebrand, 279 EM at 1354.13. See Pieczenik v. Dyax Corp., 265 EM 1329,1333-1336 (Fed.

Cit. 2001).14. International Shoe Co. v. Washington, 326 U.S. 310 (1945).15. DeprenylAnimal Health, Inc. v.The U. ofToronto Innovations

Found., 297 F3d 1343, 1350-1351 (Fed. Cir. 2002);Hildebrand, 279 E3d at 1355; Akro Corp. v. Luker, 45 E3d1541, 1543 (Fed. Cir. 1995).

16. Deprenyl, 297 E3d at 1350-1351; Inamed Corp. v Kuzmak,249 F.3d 1356, 1360 (Fed. Cir. 2001); Burger King Corp. v.Rudzewicz, 471 U.S. 462, 471, 476-477 (1985).

17. See n.16, supra.18. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466

U.S. 408,414 n.9 (1984).19. See Perkins v. Benguet Consol. Mining Co., 342 U.S. 437,

447-449 (1952); Lake v. Lake, 817 F.2d 1416, 1420 (9th Cit.1987).

20. See LSI Indus. Inc. v. Hubbell Lighting, Inc., 232 F3d 1369,1375 (Fed. Cit. 2000); Helicopteros, 466 U.S. at 414-16.

21. See Mary Twitchell, "The Myth of General jurisdiction," 101Hare L. Rev. 610,635 n.36 (1988).

22. See Hubbell Lighting, 232 EM at 1375.

23. See reasoning of Gator.com Corp. v. L.L. Bean, Inc., 341F3d 1072, 1080 (9th Cir. 2003) (citing decisions from othercircuits clearly stating that general jurisdiction can be estab-lished by Internet-based contacts, and relying on the slid-ing scale test of the quality of Internet contacts as set forthin Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F Supp.

1119, 1124 (WD, Pa. 1997), to determine whether generaljurisdiction holds), vacated at Gator.com Corp. v. L.L. Bean,

Inc., 366 F3d 789 (9th Cit. 2004), but issues not furtheranalyzed because appeal was dismissed as moot followingsettlement at G : -.corn Corp. v. L.L. Bean, Inc., 398 E3d1125 (9th C - ) ' banc) (dissent pointing out at 1142-1143 that while initial decision no longer has force of law, itremains at least a "clear statement" of opinion by a panel of

C'

r-

p

isdiction

- '1"-ng 471

- i.S.

26. See McGee v. Intl. Life Ins. Co., 355 U.S. 231223 (1957);Lake, 817 E2d at 1421.

27. Red Wing Shoe, 148 Fad at 1359 (citing Burger King, 471 U.S.at 475 and n.17).

28. Zeneca Ltd. v. Mylan Pharms., Inc., 173 E3d 829, 831-832(Fed. Cit. 1999).

29. Burger King, 471 U.S. at 476-77; Electronicsfor Imaging, 340E3d at 1351-1352; Deprenyl, 297 Fad at 1354-1355.

30. Pennington Seed, 457 F3d at 1344; Inamed, 249 E3d at 1360;Akro, 45 F3d at 1545.

31. See Silent Drive, 326 F3d at 1202; Deprenyl, 297 F.3d at1350-1351; Inamed, 249 F3d at 1360; Burger King, 471 U.S.at 471, 476-477.

31 Breckenridge Pharmaceutical, Inc. v. Metabolite Laboratories,Inc.,444 E3d 1356, 1366-1367 (Fed. Cir. 2006)_

33. Electronics for Imaging, 340 F.3d at 1350-1351.34. Deprenyl, 297 E3d at 1351-1352.35. Inamed, 249 F.3d at 1361-1362, 1364.

36. HollyAnne Corp. v. TFT, Inc., 199 E3d 1304, 1307-1310(Fed. Cit. 1999).

37. Akro v. Luker, 45 EM at 1542-1543, 1546.38. Genetic Implant Sys. v. Core-Vent Corp., 123 E3d 1455,

1458 (Fed. Cit. 1997).39. See also HollyAnne Corp., 199 E3d at 1307-1310.40. McGee v. Intl. Life Ins. Co., 355 U.S. 220,221-223 (1957).41. Beverly Hills Fan Co. a Royal Sovereign Corp., 21 F3d

1558, 1565-1568 (Fed. Cit. 1994).42. Viam Corp. v. Iowa Export-Import Trading Co., 84 EM 424,

427-429 (Fed. Cit. 1996).43. See Beverly Hills Fan, 21 E3d at 1565-1568; Viam Corp.,

84 F3d at 427-429; Genetic Implant, 123 E3d at 1458-1459;

Rio Properties, Inc. v. Rio International Interlink, 284 E3d

1007, 1020 (9th Cit. 2002) ("[O]perating even a passive

Web site in conjunction with `something more'-conduct

directly targeting the forum-is sufficient to confer personal

jurisdiction.").

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Intellectual Property & Technology Law journal 1

44. T 'able Beach Co. v. Caddy, 453 F.3d 1151, 1156 (9th Cir.An Hydraulic AIS, 383 E3d at 549-550; see also Trintec

, )5 F3d at 1281-1283 (citing cases with varying hold-regarding whether Internet-based contacts conferred

personal jurisdiction, but not adopting a specific standard orapplying the rules because of a lack of fact discovery).

45. See Rio Prosae

_ , at

-0.

46. See Gatorcotr, `;

r

48. Akro, 45 F.3d at 1547.49. Electronics for Imaging, 340 E3d at 1351.50. Deprenyl, 297 F3d at 1.352.51. Inamed, 249 E3d at 1362-1363.52. Akro, 45 F3d at 1548-1549.53. See also Genetic Implant, 123 F3d at 1459 (similar); Breckenridge,

444 F3d at 1366-1367 (similar); Beverly Hills Fan, 21 F3d1558, 1565 (patent infringement claim arose out of de-fendant's acts of purposefully shipping product into forumthrough an established distribution ch<.:-

54. Pennington Seed, 457 E3d 1334, 137- 344 (Fed. Cir. 2006).

55. HollyAnne Corp., 199 F3d at 1307-13 ).

56. See Rio Properties, 284 F3d at 1021; 3d Sys., Inc. v. AarotechLaboratories, 160 F.3d 1373, 1379 (Fed. Cir. 1998).

57. See Pennington Seed, 457 F3d at 1344.

58. Burnham v. Superior Court, 495 U.S. 604,622 (1990).59. Id.60. Id. at 607-608.61. Id. at 619.

62. Id. at 630.63. Id, at 640.64. zer v. Learjet f

s Lion Corp., '

--

-^, 182-183da a

at 1363 (citing Asahi Metal Industry Co. v. Sup. Court ofCalifornia, 480 U.S.102,102,113 (1987)).

72. Asahi, 480 U.S. at 113-114.

71 Id. at 115-116.74. See, e.g., cases cited under sections regarding "Purposeful

Direction" and "Arising Out Of or Relating Tq" includir.Breckenridge, 444 F.3d at 1367-1378; Electronics f

a340 F3d at 1352; Deprenyl, 297 F3d at 1356-1357; _249 F3d at 1363-1364.

75. Silent Drive, 326 F3d at 1202.76. Hildebrand, 279 F3d at 1353-1356.

77. Red Wing Shoe, 148 E3d at 1357-1360.

Ig - ,' 3 P,to.;

70. S c Burger King, 471 U.S. at 77; Deprenyl, 297 F.3d at 1356.71. See Burger King, 471 U.S. at 477; Breckenridge, 444 F3d at

1363; Deprenyl, 340 F3d at 1351-1352; Inamed, 249 Fad

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