No.

__________
IN THE
SUPREME COURT OF THE UNITED STATES

PORAUTO INDUSTRIAL CO., LTD; ACCUAIRE
CORP.; AND CHIH-HSIANG HSU,

Petitioners,
v.

KABO TOOL COMPANY; AND CHIH-CHING
HSIEH,

Respondents.

On Petition for a Writ of Certiorari to the
United States Court of Appeals for the
Federal Circuit
PETITION FOR A WRIT OF CERTIORARI
Jack Chen Min Juan, Esq.
Micah S. Echols, Esq.
Counsel of Record
Brian R. Hardy, Esq.
Marquis Aurbach Coffing
10001 Park Run Dr.
Las Vegas, NV 89145
(702) 382-0711
mechols@maclaw.com
Counsel for Petitioners
i


QUESTIONS PRESENTED
This is a specific personal jurisdiction case in
which the Respondents, Kabo Tool Company and
Chih-Ching Hsieh (collectively Plaintiffs), alleged a
single claim of patent infringement of a wrench
design (U.S. Patent No. 7,066,057) against
Petitioners, Porauto Industrial Co., Ltd; Accuaire
Corp.; and Chih-Hsiang Hsu (collectively
Defendants). Although Plaintiffs and Defendants
are both based in Taiwan, where Plaintiffs have
maintained a parallel litigation involving the same
wrench design, the Federal Circuit refused to
intervene and dismiss Defendants from a Nevada
Federal District Court lawsuit due to a lack of
specific personal jurisdiction. The parties agree that
there is no general personal jurisdiction over
Defendants.
The questions presented are:
1. Whether affidavits of counsel cannot
provide a sufficient basis to subject Defendants to
specific personal jurisdiction in Nevada for a case
alleging patent infringement.
2. Whether the controlling Federal Circuit
reasonable factors for determining specific personal
jurisdiction in cases alleging patent infringement are
limited by the stream of commerce theory set forth
by the plurality opinion in Asahi Metal Industry Co.,
Ltd. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026
(1987).
ii


PARTIES TO THE PROCEEDINGS
Petitioners, Porauto Industrial Co., Ltd;
Accuaire Corp.; and Chih-Hsiang Hsu, were the
petitioners in the United States Court of Appeals for
the Federal Circuit and the defendants in the United
States District Court, District of Nevada.
Respondents, Kabo Tool Company and Chih-
Ching Hsieh, were the respondents in the United
States Court of Appeals for the Federal Circuit and
the plaintiffs in the United States District Court,
District of Nevada.

CORPORATE DISCLOSURE STATEMENT
Pursuant to Supreme Court Rule 29.6,
petitioners Porauto Industrial Co., Ltd; Accuaire
Corp.; and Chih-Hsiang Hsu state the following:
Porauto Industrial Co., Ltd and Accuaire
Corp. are not publicly held companies, and no
publicly held company owns 10% or more of the stock
of these companies. Chih-Hsiang Hsu is an
individual.




iii


TABLE OF CONTENTS
QUESTIONS PRESENTED ....................................... i
PARTIES TO THE PROCEEDINGS ........................ ii
CORPORATE DISCLOSURE STATEMENT ........... ii
TABLE OF AUTHORITIES ..................................... vi
OPINIONS BELOW .................................................... 1
JURISDICTION .......................................................... 1
CONSTITUTIONAL PROVISIONS ........................... 1
STATEMENT OF THE CASE .................................... 2
A. Plaintiffs Complaint Alleging a Single Claim for
Patent Infringement ................................................... 3
B. Defendants De Minimis Contacts with
Nevada and Motion to Dismiss for Lack of Personal
Jurisdiction .................................................................. 5
C. The District Courts Orders Denying Defendants
Motion to Dismiss and Reconsideration. .................... 7
D. The Federal Circuits Improper Reliance Upon
Affidavits of Counsel, Failure toApply Controlling
Federal Circuit Law, and Failure to Distinguish the
Stream of Commerce Theory from the National
Contacts Theory Set Forth in Asahi. .......................... 8
REASONS FOR GRANTING THE PETITION ......... 9
iv


A. Affidavits of Counsel Cannot Provide a Sufficient
Basis to Subject Foreign lien Defendants to Specific
Personal Jurisdiction in Nevada for a Case Alleging
Patent Infringement. ................................................ 10
B. In Cases Alleging Patent Infringement, the
Controlling Federal Circuit Reasonableness Factors
Must Be Applied for a Specific Personal Jurisdiction
Analysis. .................................................................... 12
C. The Federal Circuit Has Admittedly Failed to
Distinguish the Stream of Commerce Theory from the
National Contacts Theory Set Forth in Asahi for
Determining Personal Jurisdiction in Cases Alleging
Patent Infringement. ................................................ 15
1. Asserting Personal Jurisdiction Over
Defendants in Nevada Is Overly Burdensome
on Them. ......................................................... 16
2. Nevada Does Not Have An Interest In
Adjudicating the Dispute. .............................. 19
3. Plaintiffs Can Obtain Relief in a More
Convenient Forum and Effective Manner. .... 19
4. Defendants Dismissal from this
Litigation is Necessary to Effectuate an
Efficient Resolution of the Matter. ................ 20
5. The Shared Interest of the Several States
Demands Defendants Dismissal from this
Litigation. ....................................................... 21
v


CONCLUSION .......................................................... 23
APPENDIX
Order of the United States Court of Appeals for the
Federal Circuit, May 5, 2014 .................................... 1a
Order of the United States District Court, District of
Nevada, March 6, 2014 ............................................. 4a
Order of the United States District Court, District of
Nevada, September 20, 2013 .................................... 6a
United States Court of Appeals for the Federal
Circuit, Denial of Panel Rehearing, June 20,
2014 ......................................................................... 24a

vi


TABLE OF AUTHORITIES
Cases
3D Systems, Inc. v. Aarotech Laboratories, Inc., 160
F.3d 1373 (Fed. Cir. 1998) ........................................ 14
Akro Corp. v. Luker, 45 F.3d 1541 (Fed. Cir. 1995) ..... 14
Asahi Metal Industry Co., Ltd. v. Superior Court, 480
U.S. 102, 107 S.Ct. 1026 (1987) ........................ passim
Beverly Hills Fan Co. v. Royal Sovereign Corp., 21
F.3d 1558 (Fed. Cir. 1994) .................. 7, 10, 13-14, 15
Blanckmer v. U.S., 284 U.S. 421, 52 S.Ct. 252
(1932) ......................................................................... 18
Boit v. Gar-Tec Prods., Inc., 967 F.2d 671 (1st Cir.
1992) .......................................................................... 11
Chlebda v. H. E. Fortna & Bro., Inc., 609 F.2d 1022
(1st Cir. 1979) ............................................................ 11
Daimler AG v. Bauman, 134 S.Ct. 746 (2014) ........... 3
Deprenyl Animal Health, Inc. v. Univ. of Toronto
Innovations Found., 297 F.3d 1343 (Fed. Cir.
2002) .......................................................................... 13
Figueroa Colon v. Radisson Cable Beach Resort, 310
F.Supp.2d 437 (D.P.R. 2004) .................................... 11
Genetic Implant Sys., Inc. v. Core-Vent Corp., 123
F.3d 1455 (Fed. Cir. 1997) ........................................ 14
vii


Gillars v. U.S., 182 F.2d 962 (D.C. Cir. 1950) ......... 18
Goodyear Dunlop Tires Operations, S.A. v. Brown,
131 S.Ct. 2846 (2011) .................................................. 3
Harris Rutsky & Co. Ins. Servs., Inc. v. Bell &
Clements Ltd., 328 F.3d 1122 (9th Cir. 2003) .......... 13
Merial Ltd. v. Cipla Ltd., 681 F.3d 1283 (Fed. Cir.
2012) .......................................................................... 22
Nuance Comms., Inc. v. Abbyy Software House, 626
F.3d 1222 (Fed. Cir. 2010) ........................................ 14
Touchcom, Inc. v. Bereskin & Parr, 574 F.3d 1403
(Fed. Cir. 2009) .......................................................... 21
U.S. v. Best, 76 F.Supp. 138 (D. Mass. 1948) ........... 18
U.S. v. Korolkov, 870 F.Supp. 60 (S.D.N.Y. 1994) ... 18
U.S. v. Taveras, 2006 WL 1875339, *15 (E.D.N.Y.
July 5, 2006) .............................................................. 18
Constitutional Provisions
United States Const. Amend. XIV .......................... 1-2
Other Authorities
SEMA Show Website, http://www.semashow.com ..... 6

1


Defendants respectfully petition this Court
for a writ of certiorari to review the judgment of
the United States Court of Appeals for the Federal
Circuit in this matter.
OPINIONS BELOW
The decision of the Federal Circuit Court of
Appeals is reprinted in the Appendix (App.) at 1a
3a. The District Courts order denying Defendants
motion for reconsideration is reprinted at App. 4a
5a. The decision of the United States District Court,
District of Nevada, is reprinted at App. 6a23a. The
Federal Circuits order denying panel rehearing is
reprinted at App. 24a25a.
JURISDICTION
The Federal Circuit filed its decision on
May 5, 2014. App. 1a3a. Defendants timely filed a
petition for rehearing, which the Federal Circuit
denied on June 20, 2014. App. 24a25a. This Court
has jurisdiction according to 28 U.S.C. 1254(1).
CONSTITUTIONAL PROVISIONS
The Fourteenth Amendment to the United
States Constitution, Section 1, provides:
All persons born or naturalized in the
United States, and subject to the
jurisdiction thereof, are citizens of the
United States and of the state wherein
they reside. No state shall make or
2


enforce any law which shall abridge the
privileges or immunities of citizens of
the United States; nor shall any state
deprive any person of life, liberty, or
property, without due process of law;
nor deny to any person within its
jurisdiction the equal protection of the
laws.
STATEMENT OF THE CASE
This petition seeks clarity of the Federal
Circuits continuing failure to distinguish the stream
of commerce theory adopted by the plurality opinion
in Asahi Metal Industry Co., Ltd. v. Superior Court,
480 U.S. 102, 107 S.Ct. 1026 (1987) and the
alternative national contacts theory in cases alleging
patent infringement. In the instant case, the Federal
Circuit concluded that the exercise of specific
personal jurisdiction over Defendants was
reasonable and fair. App. 3a. In reaching this
conclusion, the Federal Circuit relied upon affidavits
of counsel and Ninth Circuit regional case law on
specific jurisdiction instead of the Federal Circuits
own mandatory controlling factors. So, before
reaching the Asahi issue, Defendants also ask this
Court to clarify that affidavits of counsel cannot
provide a basis to subject Defendants to specific
personal jurisdiction in Nevada.
The contours of specific personal jurisdiction
in the context of cases alleging patent infringement
against foreign alien defendants is particularly
3


important, as this Court has previously noted in
similar circumstances. See, e.g., Goodyear Dunlop
Tires Operations, S.A. v. Brown, 131 S.Ct. 2846,
2853 (2011) (We granted certiorari to decide
whether the general jurisdiction the North Carolina
courts asserted over petitioners is consistent with
the Due Process Clause of the Fourteenth
Amendment.); see also Daimler AG v. Bauman, 134
S.Ct. 746, 753 (2014) (We granted certiorari to
decide whether, consistent with the Due Process
Clause of the Fourteenth Amendment, Daimler is
amenable to suit in California courts for claims
involving only foreign plaintiffs and conduct
occurring entirely abroad.). Therefore, Defendants
respectfully request that this Court grant this
petition for a writ of certiorari to resolve the
personal jurisdiction issues presented.
A. Plaintiffs Complaint Alleging a Single
Claim for Patent Infringement.
As asserted in Plaintiffs complaint, Plaintiff
Kabo Tool Company is a Taiwan corporation with its
headquarters and principal place of business at
No. 367, Pei Yang Rd, Fengyuan Dist., Taichung
City, Taiwan. PA 3234. Plaintiff Chih-Ching Hsien
is a citizen of Taiwan with his residence at No. 367,
Pei Yang Rd, Fengyuan Dist., Taichung City,
Taiwan. PA 32. Plaintiff Hsien is the chief executive
officer of Kabo and is the named inventor on a
substantial majority of the patents held by Kabo. Id.
Kabo is a manufacturing and supply company that
provides various electrical, hydraulic, mechanical,
4


and other industrial tools including, but not limited
to, the wrench at issue in the instant litigation.
PA 32.
Defendant Hsu is a citizen of Taiwan residing
in Taipei, Taiwan and is the principal director of
Accuaire Corp. and Porauto Industrial Co., Ltd. (the
Foreign Corporate Defendants). PA 32. The
Foreign Corporate Defendants are Taiwan
corporations with their headquarters and principal
place of business at 4F-1 No.155 Sec.1, Keelung Rd.,
Taipei 110, Taiwan. Id. According to the allegations
set forth in Plaintiffs complaint, the Defendants
have allegedly infringed upon U.S. Patent
No. 7,066,057 (the Patent) which was assigned to
Plaintiff Kabo. PA 33. Based upon these allegations,
Plaintiffs have haled Defendants away from their
native country of Taiwan to defend themselves
against a single cause of action for alleged patent
infringement in Las Vegas, Nevada. PA 3334.
In their complaint, Plaintiffs alleged generally
that Defendants were distributing or selling
infringing products throughout Nevada including in
this judicial district. PA 32. Without any further
specification, Plaintiffs also alleged that Defendants
have placed infringing products into the stream of
commerce, via an established distribution channel,
with the knowledge and/or understanding that such
products are sold in the State of Nevada. PA 33.
Thus, Plaintiffs complaint outlined certain factors
for personal jurisdiction without any specific details.
5


B. Defendants De Minimis Contacts with
Nevada and Motion to Dismiss for Lack
of Personal Jurisdiction.
Aside from the fact that: (1) all of the
information, documents, and individuals involved in
the alleged acts reside in Taiwan; (2) the information
and documents are written in Chinese; and (3) the
native language for all individuals involved is
Chinese, Plaintiffs have incorrectly selected Las
Vegas, Nevada as the location to file their lawsuit.
PA 3144. A review of Defendants contacts with
Nevada evidences that such contacts are truly de
minimis.
First, the Foreign Corporate Defendants are
not Nevada (or even U.S.) corporations. PA 32.
Neither of the Foreign Corporate Defendants pay nor
have paid taxes in Nevada. The Foreign Corporate
Defendants do not have telephone listings in
Nevada, and they maintain no accounts in any
financial institutions in the State. In addition, the
Foreign Corporate Defendants do not maintain or
lease any offices, distribution facilities, or
manufacturing plants in Nevada, nor do they
otherwise own, rent, lease, or occupy any real or
personal property in Nevada. The Foreign Corporate
Defendants have never availed themselves of the
courts of Nevada or anywhere in the United States.
Second, Defendant Hsus contacts with
Nevada (and the U.S.) are equally tenuous, if not
more so than the Foreign Corporate Defendants.
6


Defendant Hsu is not a resident of Nevada or the
United States and, although served with process
while attending the Specialty Equipment Marketing
Association (SEMA) Show,
1
he has never lived or
worked in Nevada. Defendant Hsu does not pay and
has never paid taxes in Nevada. Hsu has traveled to
Nevada only very sporadically and then generally for
the purpose of attending (like many other
international visitors) the annual SEMA show. Hsu
has not personally transacted business in Nevada,
does not directly derive any revenue from goods used
or consumed or services rendered in Nevada, and
does not personally employ anyone in Nevada.
Defendant Hsu does not have a telephone listing in
Nevada, maintains no accounts in any financial
institutions in the State, and has never availed
himself of the Nevada or United States courts.
Defendant Hsu does not own, rent, lease, or occupy
any other real or personal property in Nevada.
Due to the lack of personal jurisdiction
(specific or general), Defendants filed a motion to

1
According to its website, The SEMA Show is the premier
automotive specialty products trade event in the world
(PLEASE NOTE: THE SEMA SHOW IS NOT OPEN TO
THE GENERAL PUBLIC). It draws the industrys brightest
minds and hottest products to one place, the Las
Vegas Convention Center. As part of the AAIW, the SEMA
Show attracts more than 100,000 industry leaders from
more than 100 countries for unlimited profit opportunities in
the automotive, truck and SUV, powersports, and RV markets.
See http://www.semashow.com (last accessed Sept. 16, 2014).
7


dismiss in the District Court. PA 4560. In their
opposition, Plaintiffs submitted the bare affidavit of
Jas S. Dhillon who is one of the counsel for Plaintiffs
in this litigation. PA 8082. Mr. Dhillons affidavit
asserted that he was personally familiar with the
facts set forth herein . . . PA 81. Mr. Dhillon also
alleged upon information and belief that Mr. Hsu
maintains a residence in Los Angeles, California and
he regularly travels to Las Vegas for business. Id.
The affidavit of counsel also asserts, without further
specification, that Mr. Dhillon had obtained various
documents and communications in a separate
litigation suggesting that Defendants use a company
JS Products to distribute the wrench that is the
subject of the infringement claim. PA 8182. None of
the allegations in Mr. Dhillons affidavit were
corroborated by documentation. And, Plaintiffs never
moved the District Court to amend their complaint
to include more specific allegations to support their
claim for personal jurisdiction in Nevada.
C. The District Courts Orders Denying
Defendants Motion to Dismiss and
Reconsideration.
Despite the controlling nature of Federal
Circuit law upon a personal jurisdiction analysis in a
patent case (see Beverly Hills Fan Co. v. Royal
Sovereign Corp., 21 F.3d 1558, 1564 (Fed. Cir.
1994)), the District Court, nevertheless, applied
Ninth Circuit law in denying Defendants motion to
dismiss. App. 6a23a. This failure was significant
because the District Court concluded that of the
8


seven reasonableness factors in the Ninth Circuit
test, Defendants were favored in exactly half of the
factors. App. 14a22a. And, under the five
reasonableness factors of the Federal Circuit test,
Defendants would have prevailed.
Due to the District Courts error of not
applying controlling Federal Circuit law and the
likelihood that a proper application of the
reasonableness factors would result in dismissal,
Defendants filed a motion for reconsideration.
PA 138155. Yet, the District Court denied the
motion without any discussion. App. 4a5a. For the
first time, the District Court also revealed that it
had relied upon another declaration of counsel in
denying Defendants motion to dismiss.
Supplemental Appendix (SA) 266284. The District
Court also denied Defendants request for permission
to appeal according to 28 U.S.C. 1292(b). App. 4a
5a.
D. The Federal Circuits Improper Reliance
Upon Affidavits of Counsel, Failure to
Apply Controlling Federal Circuit Law,
and Failure to Distinguish the Stream of
Commerce Theory from the National
Contacts Theory Set Forth in Asahi.
In an effort to avoid being haled into a Nevada
court from Taiwan, Defendants sought extraordinary
relief in the Federal Circuit for the application of the
five mandatory reasonableness factors for personal
jurisdiction. Although Defendants should have had
9


the benefit of the controlling Federal Circuit
reasonableness factors, the Federal Circuit simply
concluded that specific personal jurisdiction of all
Defendants was reasonable and fair. App. 3a. The
Federal Circuit also denied Defendants timely
petition for rehearing. App. 24a25a.
REASONS FOR GRANTING THE PETITION
The Federal Circuits decision raises three
main issues that are presented to this Court for
review: (1) the Federal Circuit relied upon affidavits
of counsel to subject Defendants to personal
jurisdiction in Nevada; (2) the Federal Circuit failed
to apply controlling Federal Circuit law for the
specific personal jurisdiction analysis; and (3) the
Federal Circuits conclusion that specific personal
jurisdiction over Defendants in Nevada
unnecessarily conflates the distinction made by this
Court in Asahi that personal jurisdiction must be
made upon a stream of commerce theory, not a
national contacts theory.
Because the Federal Circuit exclusively
reviews patent cases, including personal jurisdiction
issues arising in patent cases, this Court provides
the only avenue to review decisions of the Federal
Circuit. Due to the uniqueness of the Federal
Circuit, there is often not a circuit split to justify
review according to Supreme Court Rule 10(a). As
such, Defendants seek review under both Rule 10(a)
and 10(c), which allows for certiorari to be granted
when the decision of a court of appeals decides an
10


important question of federal law that is unsettled or
conflicts with relevant decisions of this Court. The
tension between Asahi decided by this Court and the
Federal Circuits view of personal jurisdiction is
apparent. Cf. Beverly Hills Fan Co. v. Royal
Sovereign Corp., 21 F.3d at 15641565 (failing to
distinguish between the results from the differing
Asahi stream of commerce and national contacts
tests). Upon these grounds, the Court should grant
this petition for a writ of certiorari.
A. Affidavits of Counsel Cannot
Provide a Sufficient Basis to Subject
Foreign Alien Defendants to Specific
Personal Jurisdiction in Nevada for a
Case Alleging Patent Infringement.
The Federal Circuit made a ruling contrary to
well established precedent regarding affidavits of
counsel in the context of a personal jurisdiction
analysis. Specifically, the Federal Circuit noted that
the District Court denied the motion on the papers
based on, among other things, allegations that
petitioners directly sold and distributed the accused
products in Nevada through a long-standing
distribution partnership with a Nevada corporation.
App. 2a. A closer review reveals that the Federal
Circuit improperly based its decision upon the
affidavits of counsel.
The District Court noted in its order that [a]s
a factual basis for allegations made in the complaint,
plaintiffs supplied an affidavit regarding discovery
11


obtained. PA 15. Later in the District Courts order,
it noted that [t]he plaintiffs affidavit states that
Mr. Hsu was personally involved. PA 18. Clearly,
the Federal Circuit believed that the District Court
based its decision on presented, substantiated facts.
The problem, however, is that the only affidavits
presented were affidavits authored and signed by
Plaintiffs counsel. Yet, [m]ere allegations in the
complaint or arguments of counsel are not sufficient
to establish personal jurisdiction over a defendant.
Figueroa Colon v. Radisson Cable Beach Resort, 310
F.Supp.2d 437, 438 (D.P.R. 2004). Similarly, the
First Circuit held that plaintiffs may not rely on
unsupported allegations in their pleadings to make a
prima facie showing of personal jurisdiction. Boit v.
Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir.
1992). The First Circuit also explained that believing
that jurisdictional allegations must be taken as true
is an elementary mistake. Id. (citing Chlebda v. H.
E. Fortna & Bro., Inc., 609 F.2d 1022, 1024 (1st Cir.
1979)).
Indeed, only two affidavits were included in
any of the briefing provided to the District Court
an affidavit of Jas S. Dhillon and an affidavit of
Roseanna M. Castillo. PA 8082; SA 278, n. 2. Both
affiants are attorneys for Plaintiffs. Thus, their
testimony should have no weight with respect to the
personal jurisdiction assessment, especially given
that these attorney affiants have no personal
knowledge of the allegation that Defendants
supposedly conduct business in Nevada.
12


In summary, the Court should clarify that
Defendants cannot be subject to specific personal
jurisdiction in Nevada based upon affidavits of
counsel.
B. In Cases Alleging Patent Infringement,
the Controlling Federal Circuit
Reasonableness Factors Must Be
Applied for a Specific Personal
Jurisdiction Analysis.
The Federal Circuit incorrectly deferred to the
District Courts reliance upon Ninth Circuit
precedent to resolve the personal jurisdiction issues
by using a seven-factor assessment of
reasonableness. App. 1a3a. Specifically, the District
Court order examined:
(1) the extent of the defendants
purposeful interjection into the forum
states affairs; (2) the burden on the
defendant of defending in the forum;
(3) the extent of conflict with the
sovereignty of the defendants state;
(4) the forum states interest in
adjudicating the dispute; (5) the most
efficient judicial resolution of the
controversy; (6) the importance of the
forum to the plaintiffs interest in
convenient and effective relief; and
(7) the existence of an alternative
forum.
13


App. 18a19a (citing Harris Rutsky & Co. Ins.
Servs., Inc. v. Bell & Clements Ltd., 328 F.3d 1122,
1132 (9th Cir. 2003)).
As noted above, Federal Circuit case law must
be exclusively relied upon where the personal
jurisdictional inquiry is intimately involved with the
substance of the patent laws. Electronics for
Imaging, Inc. v. Coyle, 340 F.3d 1344, 1348 (Fed. Cir.
2003). Notably, Federal Circuit precedent is distinct
from the Ninth Circuit precedent when
contemplating the reasonableness of asserting
personal jurisdiction:
(1) the burden on the defendant; (2) the
interests of the forum state; (3) the
plaintiffs interest in obtaining relief;
(4) the interstate judicial systems
interest in obtaining the most efficient
resolution of controversies; and (5) the
shared interest of the several states in
furthering fundamental substantive
social policies.
Deprenyl Animal Health, Inc. v. Univ. of Toronto
Innovations Found., 297 F.3d 1343, 1355 (Fed. Cir.
2002). While overlap exists, the differences between
the two standards are important, as the Federal
Circuit has previously acknowledged that
application of Ninth Circuit law would not promote
[the Federal Circuits] mandate of achieving national
uniformity in the field of patent law. Beverly Hills
14


Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1564
(Fed. Cir. 1994).
In this case, the Federal Circuit undeniably
applied Ninth Circuit law to assess whether
Defendants were subject to personal jurisdiction in
the District Courta direct violation of its own
precedent. App. 1a3a; 6a23a. Moreover, the
application of Federal Circuit law to a personal
jurisdiction issue in cases alleging patent
infringement is mandatory and non-waivable.
Indeed, the law of the Federal Circuit, rather than
that of the regional circuit in which the case arose,
applies to determine whether the district court
properly declined to exercise personal jurisdiction
over an out-of-state accused infringer. Nuance
Comms., Inc. v. Abbyy Software House, 626 F.3d
1222, 1230 (Fed. Cir. 2010) (citing Akro Corp. v.
Luker, 45 F.3d 1541, 1543 (Fed. Cir. 1995)).
Time and again, this Court has reiterated,
[W]e apply Federal Circuit law because the
jurisdictional issue is intimately involved with the
substance of the patent laws. Genetic Implant Sys.,
Inc. v. Core-Vent Corp., 123 F.3d 1455, 1457 (Fed.
Cir. 1997) (citation omitted). Under [jurisdictional]
circumstances such as these, we have held we owe
no special deference to regional circuit law. Beverly
Hills Fan Co., 21 F.3d at 1565. When analyzing
personal jurisdiction for purposes of compliance with
federal due process, Federal Circuit law applies. 3D
Systems, Inc. v. Aarotech Laboratories, Inc., 160 F.3d
1373, 1376 (Fed. Cir. 1998). Consequently, the clear
15


precedent mandates that the Federal Circuit should
have applied Federal Circuit law to the personal
jurisdiction issues presented.
Therefore, because this Court is the only
avenue for review of the Federal Circuits unique
ability to review issues arising in patent cases, the
Court should grant certiorari.
C. The Federal Circuit Has Admittedly
Failed to Distinguish the Stream of
Commerce Theory from the National
Contacts Theory Set Forth in Asahi for
Determining Personal Jurisdiction in
Cases Alleging Patent Infringement.
The Federal Circuits conclusion that personal
jurisdiction was proper is at odds with Asahi.
Specifically, the Federal Circuit, in reviewing the
District Courts orders, concluded that jurisdiction
over the petitioners in Nevada would be reasonable
and fair. App. 3a. Implicit within the Federal
Circuits conclusory order is the same tension found
in Beverly Hills Fan Co. v. Royal Sovereign Corp., 21
F.3d 1558 (Fed. Cir. 1994). In Beverly Hills Fan Co.,
the Federal Circuit assimilated the stream of
commerce theory of personal jurisdiction and the
national contacts theory presented in the competing
Asahi opinions. Id. at 1566 (We need not join this
debate here, since we find that, under either version
of the stream of commerce theory, plaintiff made the
required jurisdictional showing.). Yet, the proper
application of Asahi cannot be minimized. Properly
16


limited and applied to the Federal Circuit
reasonableness factors, Asahi calls for the dismissal
of Defendants due to the lack of specific personal
jurisdiction. In fact, Asahi held that a defendants
awareness that the stream of commerce may or will
sweep the product into the forum State does not
convert the mere act of placing the product into the
stream into an act purposefully directed toward the
forum State. Asahi, 480 U.S. at 112, 107 S.Ct. at
1032.
1. Asserting Personal Jurisdiction Over
Defendants in Nevada Is Overly
Burdensome on Them.
Although the Federal Circuit and the District
Court employed an incorrect reasonableness test, the
District Court properly assessed that Defendants
would endure substantial hardship in defending
themselves in a foreign legal system. PA 2021. In
fact, the unique burdens placed upon one who must
defend oneself in a foreign legal system should have
significant weight in assessing the reasonableness of
stretching the long arm of personal jurisdiction over
national borders. Asahi Metal Indus. Co., Ltd., 480
U.S. at 114, 107 S.Ct. at 1033. In every case where a
court attempts to assert jurisdiction over a foreign
alien defendant, those interests
as well as the Federal interest in
Governments foreign relations policies,
will be best served by a careful inquiry
into the reasonableness of the assertion
17


of jurisdiction in the particular case,
and an unwillingness to find the serious
burdens on an alien defendant
outweighed by minimal interest on the
part of the plaintiff or the forum State.
Great care and reserve should be
exercised when extending out notions of
personal jurisdiction into the
international field.
Id. at 115, 1034 (internal citations omitted).
In the instant case, the serious burdens on
Defendants far outweigh the minimal interest on the
part of Plaintiffs. Indeed, the burden of defending
this patent infringement suit in a foreign country
would be great on Defendants. Defendants principal
place of business is in Taiwan, and all documents in
Defendants possession that are or may be relevant
to this action are located in Taiwan. Moreover, the
individuals involved in the alleged acts reside in
Taiwan, and the information and documents are
written in Chinese. Finally, and perhaps the most
persuasive is the fact that the native language for
the individuals involved (on both sides) is Chinese.
For these reasons alone, this factor favors
Defendants. However, the burden upon Defendants
is not limited to this factor.
Plaintiffs are well aware of the fact that many
of the key individual witnesses reside in Taiwan and
that it is extremely difficult (if not impossible) to hail
any third-party witnesses to the United States to
18


testify or be deposed. Notably, a Taiwanese citizen
cannot be compelled to respond to a United States
District Court subpoena. For nearly a century, the
U.S. courts have recognized the limits of their
subpoena powers: [A]liens who are inhabitants of a
foreign country cannot be compelled to respond to a
subpoena. They owe no allegiance to the United
States. U.S. v. Best, 76 F.Supp. 138, 139 (D. Mass.
1948) (citing Blanckmer v. U.S., 284 U.S. 421, 52
S.Ct. 252 (1932)); Gillars v. U.S., 182 F.2d 962 (D.C.
Cir. 1950). When potential witnesses are not
citizens of the United States and do not reside here,
they are not amenable to United States subpoenas.
U.S. v. Korolkov, 870 F.Supp. 60, 65 (S.D.N.Y. 1994).
[T]he federal district courts power of subpoena does
not extend to non-citizens beyond the nations
borders. U.S. v. Taveras, 2006 WL 1875339, *15
(E.D.N.Y. July 5, 2006). Simply put, in choosing
Nevada as the forum of choice, Plaintiffs have made
it more difficult for Defendants to defend themselves
given the limits of the subpoena power.
It is without question that litigation in a
foreign country would make it exceedingly difficult
for Defendants to carry on their business if all
officers and employees are based in Taiwan and
absent for an extended period of time. Thus, this
factor weighs strongly in favor of Defendants, and
this Court should compel the Federal Circuit to
dismiss Defendants from the instant litigation for
lack of personal jurisdiction.
19


2. Nevada Does Not Have An Interest In
Adjudicating the Dispute.
Nevada does not have any interest in
adjudicating a dispute between solely Taiwanese
citizenry. Indeed, a States interest directly relates to
whether a resident was injured. Asahi Metal Indus.
Co., Ltd., 480 U.S. at 114. Specifically, the Asahi
court reasoned that because the plaintiff was not a
state resident, the states legitimate interests in the
dispute diminished considerably. Id.
In the instant case, damages and injury, if
any, are those of a Taiwan company and/or Taiwan
citizens, as none of the parties are residents of
Nevada. PA 32. A judgment, if any is awarded, will
have no direct impact on Nevada. Certainly, Nevada
and the U.S. Courts need to allow Taiwanese courts
to handle disputes involving its own citizenry,
particularly where Plaintiffs have already
commenced parallel litigation in Taiwan. PA 82.
Therefore, this factor favors Defendants and
supports the dismissal of Defendants from this
litigation for lack of personal jurisdiction.
3. Plaintiffs Can Obtain Relief in a More
Convenient Forum and Effective Manner.
Plaintiffs can also obtain convenient and
effective relief, if warranted, in another court where
jurisdiction over Defendants actually existsthe
Taiwanese judicial system. The plaintiffs interest
in obtaining relief factor is present in both
reasonableness tests. The Federal Circuit did not
20


question the District Courts reasoning that if
Nevada were not the proper forum for litigation,
then Plaintiffs would have to litigate in Taiwan,
which the District Court observed, would not
present an obvious inconvenience since Taiwan is
the home of both the [Plaintiffs] and the
[Defendants]. App. 22a. Consequently, this factor is
present in both tests and still favors Defendants.
Moreover, Plaintiffs previously initiated a similar
legal action in Taiwan, wherein Defendants have
posted a $515,000 bond. PA 82. Plaintiffs, unhappy
with that outcome, decided to extend their legal
action abroad to the District of Nevada. However,
the Taiwan suit is still ongoing and is better suited
to hear this action, as Plaintiffs will be allowed their
day in court in a much more convenient forum.
4. Defendants Dismissal from this
Litigation is Necessary to Effectuate an
Efficient Resolution of the Matter.
In an effort to obtain the most efficient
resolution of the controversy, this Court should
compel the Federal Circuit to order Defendants
dismissed and allow resolution of the matter in the
underlying case in Taiwan. Not only does Taiwan
possess the majority of witnesses, parties, and
evidence, but it is also home to the first lawsuit filed
in relation to the wrench invention presently at
issue. It strains logic to conclude that efficient
resolution occurs by permitting Plaintiffs to engage
in multi-national legal actions concerning essentially
the same invention. Requiring Defendants
21


representatives to travel to Nevada to litigate this
case would thwart the judicial systems interest in
obtaining the most efficient resolution of this case.
Moreover, given the pending action in Taiwan, it is
possible for the Taiwanese court and the United
States courts to reach differing conclusions resulting
in inconsistent decisions. Consequently, the most
efficient and consistent resolution would be to allow
the Taiwanese courts (that are already handling the
underlying case) to handle the instant matter.
Again, this factor favors Defendants and heavily
weighs against any personal jurisdiction.
5. The Shared Interest of the Several States
Demands Defendants Dismissal from
this Litigation.
This Court has been very clear in announcing
that the unique burden placed upon one who must
defend oneself in a foreign legal system should have
significant weight in assessing the reasonableness of
stretching the long arm of personal jurisdiction over
national borders. Asahi Metal Indus. Co., Ltd., 480
U.S. at 114. Similarly, the Federal Circuit has noted
that the fifth factor is concerned with the potential
clash of substantive social policies between
competing fora and the efficiency of a resolution to
the controversy. Touchcom, Inc. v. Bereskin & Parr,
574 F.3d 1403, 1418 (Fed. Cir. 2009).
Fundamental substantive social policies also
indicate that personal jurisdiction is not reasonable.
Equitable considerations should be taken into
22


account. Plaintiffs previously initiated a similar
legal action in Taiwan. PA 82. Paradoxically,
Plaintiffs argue that the Taiwan litigation has no
bearing on the present case while simultaneously
pointing to the $515,000 bond that Defendants
posted in the same case as evidence of Defendants
alleged purposeful contact with Nevada. Clearly,
Plaintiffs cannot have it both ways. In fact,
Plaintiffs legal action in Taiwan is intimately
related to the present suit. The fact that Defendants
have posted a $515,000 bond in Taiwan is an
equitable fact favoring them. Defendants paid a
significant sum to meet the requirements in the
preexisting litigation. Plaintiffs, obviously unhappy
with that outcome, decided to extend their legal
action abroad to Nevada. However, the Taiwan suit
is still ongoing.
This Court should view Defendants bond
payment, along with the timing of Plaintiffs decision
to file the instant action, as evidence that
fundamental substantive social policies support the
decision to decline exercising personal jurisdiction
over Defendants to allow the parties to fully exhaust
the legal remedies that Plaintiffs first sought in
Taiwan. This final equitable argument touches upon
the Constitutional principle of comity, which
requires that this lawsuit, at a minimum, be stayed
pending the outcome of the Taiwan lawsuit. See
Merial Ltd. v. Cipla Ltd., 681 F.3d 1283, 1299 (Fed.
Cir. 2012) (The first-to-file rule is a doctrine of
federal comity, interned to avoid conflicting decisions
and promote judicial efficiency.) (citations omitted).
23


In sum, the majority of the five
reasonableness factors set forth by the Federal
Circuit favor Defendants. Therefore, this Court
should grant certiorari to address the Federal
Circuits tension with the application of Asahi to the
five reasonableness factors for specific personal
jurisdiction.
CONCLUSION
For the foregoing reasons, this petition for a
writ of certiorari should be granted.
September 18, 2014 Respectfully submitted,
Jack Chen Min Juan, Esq,
Micah S. Echols, Esq.
Counsel of Record
Brian R. Hardy, Esq.
Marquis Aurbach Coffing
10001 Park Run Dr.
Las Vegas, NV 89145
(702) 382-0711
mechols@maclaw.com
Counsel for Petitioners

1a

Filed: 05/05/2014
NOTE: This order is nonprecedential.
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
______________________________________________

IN RE PORAUTO INDUSTRIAL CO., LTD.,
ACCUAIRE CORP. AND CHIH-HSIANG HSU,
Petitioners.
______________________________________________
2014-130
______________________________________________
On Petition for Writ of Mandamus to the
United States District Court for the District of
Nevada in No. 2:12-cv-01859-LDG-NJK, Judge
Lloyd D. George.
______________________________________________
ON PETITION
______________________________________________

Before LOURIE, DYK, and REYNA, Circuit Judges.

LOURIE, Circuit Judge.
ORDER
Petitioners Accuaire Corp., Porauto Industrial
Co., Ltd., and Chih-Hsiang Hsu seek a writ of
mandamus directing the United States District
Court for the District of Nevada to dismiss the
underlying patent infringement case. Respondents
Kabo Tool Company and Chih-Ching Hsien oppose.
2a

In October 2012, respondents, a Taiwanese
tool company and its CEO, filed suit in a federal
district court in Nevada for infringement of a U.S.
patent. Petitioners, also Taiwanese residents, moved
for dismissal of the complaint for lack of personal
jurisdiction. The district court denied the motion on
the papers based on, among other things, allegations
that petitioners directly sold and distributed the
accused products in Nevada through a long-standing
distribution partnership with a Nevada corporation.
The district court further found that the burden
imposed on petitioners in having to litigate in
Nevada did not outweigh the interest of the United
States in protecting U.S. patents and Nevadas
interest in seeking redress for harms that have
taken place in that state resulting from the alleged
infringement.
The remedy of mandamus is a drastic one, to
be invoked only in extraordinary situations. Kerr v.
U.S. Dist. Court, 426 U.S. 394, 402 (1976).
Accordingly, three conditions must be satisfied
before it may issue. Cheney v. U.S. Dist. Court, 542
U.S. 367, 380 (2004). The petitioner must show a
clear and indisputable right to relief. Id. at 381
(quoting Kerr, 426 U.S. at 403). The petitioner must
lack adequate alternative means to obtain the
relief it seeks. Mallard v. U.S. Dist. Court, 490 U.S.
296, 309 (1989); Cheney, 542 U.S. at 380; Kerr, 426
U.S. at 403. And even if the first two prerequisites
have been met, the issuing court, in the exercise of
its discretion, must be satisfied that the writ is
3a

appropriate under the circumstances. Cheney, 542
U.S. at 381.
Petitioners have not met this standard. Based
on the arguments in the papers, we are not prepared
to issue a writ of mandamus to disturb the district
courts ultimate conclusion that jurisdiction over the
petitioners in Nevada would be reasonable and fair.
Nor have petitioners explained why any argument
concerning a lack of jurisdiction cannot be
meaningfully reviewed on appeal after final
judgment. Thus, petitioners have also failed to
establish that they lack an alternative means to
obtain the relief they seek. See Bankers Life & Cas.
Co. v. Holland, 346 U.S. 379, 383 (1953) ([I]t is
established that the extraordinary writs cannot be
used as substitutes for appeals . . . even though
hardship may result from delay and perhaps
unnecessary trial[.]).
Accordingly,
IT IS ORDERED THAT:
The petition for a writ of mandamus is denied.
FOR THE COURT
/s/ Daniel E. OToole
Daniel E. OToole
Clerk of Court
s26

4a

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
KABO TOOL COMPANY,
et al.,
Plaintiffs,
v.
PORAUTO INDUSTRIAL
CO., LTD., et al.,
Defendants.

Case No. 2:12-cv-01859-
LDG (NJK)
ORDER
Filed: 03/06/14

For good cause shown,
THE COURT ORDERS that Plaintiffs Motion
for Leave to File Surreply to Defendants Motion to
Dismiss (#40), which document (and the Defendants
opposition thereto) the Court considered in Denying
Defendants Motion to Dismiss, is GRANTED.
THE COURT FURTHER ORDERS that
Plaintiffs Motion to Seal Declaration (#42) is
GRANTED.
THE COURT FURTHER ORDERS that
Defendants Motion to Reconsider or Amend (#54)
the Courts Order Denying Defendants Motion to
Dismiss is DENIED.
5a

THE COURT FURTHER ORDERS that
Defendants Motion to Set Aside Clerks Entry of
Default (#59) is GRANTED; The Clerk of the Court
shall strike the Entry of Default at Docket #58.
THE COURT FURTHER ORDERS that
Defendants Motion to Stay Proceedings Pending
Appeal (#60) is DENIED.
THE COURT FURTHER ORDERS that
Defendants Objection (#72) to the Magistrate
Judges October 31, 2013, Order Denying Motion to
Stay Discovery is DENIED.
DATED this 5th day of March, 2014.

/s/ Lloyd D. George
Lloyd D. George
United States District Judge
6a

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
KABO TOOL COMPANY,
et al.,
Plaintiffs,
v.
PORAUTO INDUSTRIAL
CO., LTD., et al.,
Defendants.

Case No. 2:12-cv-01859-
LDG (NJK)
ORDER
Filed: 09/20/13

Plaintiffs, Mr. Hsien and Kabo, own the 057
patent, entitled wrench with jaws having different
tilt angles. Plaintiffs claim that defendants, Mr.
Hsu, Accuaire, and Porauto, imported and sold a
wrench product that infringed the 057 patent.
Defendants distributed the infringing product
throughout Nevada via an on-going business
relationship with a Nevada corporation. Defendants
move to dismiss (#10) for lack of personal
jurisdiction under Federal Rule of Civil Procedure
Rule 12(b)(2), stating that the infringement took
place in Taiwan, all parties are foreign subjects, and
all evidence and witnesses are in Taiwan. Plaintiffs
oppose the defendants Motion to Dismiss (#12),
arguing the infringement took place in Nevada, and
the plaintiffs wish to enforce the patent under the
laws of the country that issued the patent. Having
7a

read and considered the papers and complaint, the
Court will DENY the defendants Motion to Dismiss.
Motion to Dismiss
Motion to dismiss standard requires courts to
engage in a two-part analysis. Ashcroft v. Iqbal, 556
U.S. 662, 677-79 (2009). First, the courts accept only
non-conclusory allegations as true. Iqbal, 556 U.S.
at 677. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory
statements, do not suffice. Id. (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. at 555). However, the
Court must draw all reasonable inferences in favor
of the plaintiff. Mohamed v. Jeppesen Dataplan,
Inc., 579 F.3d 943, 949 (9th Cir. 2009). After
accepting as true all non-conclusory allegations and
drawing all reasonable inferences in favor of the
plaintiff, the Court must then determine whether
the complaint states a plausible claim for relief.
Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at
555). A claim has facial plausibility when the
plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant
is liable for the misconduct alleged. Id. This
plausibility standard is not a probability
requirement, but is more than sheer possibility. Id.
Background
Kabo Tool Company (Kabo or plaintiff) is a
Taiwan corporation that manufactures electrical,
hydraulic, mechanical, and other industrial tools,
including the wrench product at issue. Chih-Ching
8a

Hsien (Mr. Hsien or plaintiff) is a citizen of
Taiwan and the CEO of Kabo. Mr. Hsien was duly
assigned U.S. Patent No. 7,066,057 (the 057
patent), entitled Wrench with jaws having
different tilt angles. Mr. Hsien then assigned the
057 patent to Kabo.
Plaintiffs claim that Chih-Hsiang Hsu (Mr.
Hsu), Accuaire Corp. (Accuaire), and Porauto
Industrial Co., Ltd. (Porauto) (collectively,
defendants) infringed patent 057 by importing and
selling wrench products, which embody patent 057
(infringing product). Both Porauto and Accuaire
are Taiwan corporations. Neither Porauto nor
Accuaire is incorporated in Nevada or the United
States. However, Porauto and Accuaire maintain an
ongoing business relationship spanning at least 10
years with JS Product, Inc. (JSP). JSP is a Nevada
corporation with its principal place of business in
Las Vegas, NV. JSP distributes and sells wrench
products throughout Nevada. Through JSP,
Accuaire and Porauto distribute numerous products,
including the infringing product. Accuaire, Porauto,
and JSP frequently, often daily, communicate
regarding ordering, sale, and distribution of
numerous products, including the infringing product.
Plaintiffs further allege that defendants have taken
active steps to facilitate direct infringement of the
057 patent in Nevada. After plaintiffs sought an
injunction in Taiwan, defendants posted a $15
million New Taiwan Dollar Bond (approximately
$515,000 U.S. dollars) to keep shipments flowing to
JSP, specifically ensuring that shipments of the
9a

infringing product would not be a problem for the
fourth quarter of 2011.
Mr. Hsu, a citizen of Taiwan, is the Sole
Director of Accuaire and the Chairman of the Board
of Porauto. Mr. Hsu is not a resident of Nevada or
the United States. However, Mr. Hsu has been
personally involved with JSP. Mr. Hsu handles
much of JSPs business with product manufacturers
in Taiwan. Mr. Hsu provided advice to JSP
regarding a previous infringement claim brought by
Kabo against JSP. Mr. Hsu regularly travels to Las
Vegas on business-related activity to meet with JSP
and for the AAPEX/SEMA Show.
While Mr. Hsu was physically present in
Nevada, plaintiffs served him with a Summons and
the Complaint both personally and as an agent for
Accuaire and Porauto. Defendants move to dismiss
for lack of personal jurisdiction under Federal Rule
of Civil Procedure Rule 12(b)(2), stating that the
infringement took place in Taiwan, both parties are
subjects of Taiwan, and all the evidence and
witnesses are in Taiwan. Plaintiffs oppose the
defendants Motion to Dismiss since the
infringement took place in Nevada, and the plaintiffs
wish to enforce the patent under the laws of the
country that issued the patent.

10a

Personal Jurisdiction
Rule 12(b)(2) provides that a court may
dismiss a complaint for lack of jurisdiction over the
person. Fed. R. Civ. Proc. 12(b)(2). Since Mr. Hsu,
Accuaire, and Porauto move to dismiss the complaint
for lack of personal jurisdiction, Mr. Hsien and Kabo
have the burden of showing that jurisdiction in this
Court is proper under Nevadas long-arm statute
and comports with Due Process under the US
Constitution. Rio Properties Inc. v. Rio Intern.
Interlink, 284 F. 3d 1007, 1019 (9th Cir. 2002);
Fed.Rules Civ.Proc.Rule 4(k)(1)(A). Nevadas long-
arm statute allows jurisdiction in Nevada courts
over a party to a civil action on any basis not
inconsistent with the constitution of this state or the
Constitution of the United States. NRS 14.065(1);
Graziose v. American Home Products Corp., 161 F.
Supp.2d 1149, 1152 (D. Nev. 2001). The statute has
been liberally construed to reach the outer limits of
federal Constitutional Due Process. Id.
Constitutional Due Process requires that, in order
to subject a defendant to a judgment in personum, if
he be not present within the territory of the forum,
he have certain minimum contacts with it such that
the maintenance of the suit does not offend
traditional notions of fair play and substantial
justice. International Shoe Co. v. Washington, 326
U.S. 310, 316 (1945). The assertion of personal
jurisdiction can be satisfied only if Mr. Hsu,
Accuaire, and Porauto individually had sufficient
minimum contacts with Nevada such that bringing
suit in the district of Nevada would not offend the
11a

traditional notions of fair play and substantial
justice. Id. Defendants contacts with Nevada
should be analyzed in regard to each partys contacts
with Nevada. Harris Rutsky & Co. Ins. Services, Inc.
v. Bell & Clements Ltd., 328 F.3d 1122, 1130 (9th
Cir. 2003).
Subject matter jurisdiction is established
under 28 U.S.C. 1338 (a) - the district courts shall
have original jurisdiction of any civil action arising
under any Act of Congress relating to patents. In
the complaint, the plaintiffs assert that Kabo is the
assigned owner of the 057 patent and the
defendants infringed that patent. In support of this
claim, plaintiffs attached a copy of the patent 057
paperwork to the complaint.
As a factual basis for allegations made in the
complaint, plaintiffs supplied an affidavit regarding
discovery obtained in the matter of JS Products, Inc.
v. Kabo Tool Company, et al. Case No. 2:11-cv-01856-
RJC-(GWH), United States District Court, District of
Nevada. This Court may consider evidence
presented in the plaintiffs affidavits to assist in its
determination. Data Disc, Inc. v. Systems Tech.
Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977).
Since this Court will consider the affidavit, the
plaintiffs need only make a prima facie showing of
jurisdiction to survive the defendants motion to
dismiss. Harris, 328 F.3d at 1128. The analysis of
contacts for personal jurisdiction may be founded on
specific or general jurisdiction. Panavision Intern.,
L.P. v. Toeppen, 141 F.3d 1316, 1320 (1998).
12a

General Jurisdiction
For general jurisdiction to exist, the
defendants must engage in continuous and
systematic general business contacts that
approximate physical presence in Nevada.
Heliocopteros Nacionales de Columbia, S.A. v. Hall,
466 U.S. 408, 415 (1984). Plaintiffs do not claim that
general jurisdiction in Nevada is reasonable or
proper for Mr. Hsu, Accuaire, or Porauto.
Specific Jurisdiction
Plaintiffs have shown a prima facie claim for
specific jurisdiction in Nevada. The Ninth Circuit
established a three-prong test for analyzing a claim
of specific jurisdiction:
(1) The non-resident defendant must
purposefully direct his activities or
consummate some transaction with the
forum or resident thereof; or perform
some act by which he purposefully
avails himself of the privilege of
conducting activities in the forum,
thereby invoking the benefits and
protections of its laws;
(2) The claim must be one which arises out
of or relates to the defendants forum-
related activities and;

13a

(3) The exercise of jurisdiction must
comport with fair play and substantial
justice, that is, it must be reasonable.
Schwarzenegger v. Fred Martin Motor Co. 374 F.3d
797, 802 (9th Cir. 2004).
The plaintiffs bear the burden of satisfying
the first two prongs, then the burden shifts to the
defendants to present a compelling case that the
exercise of jurisdiction in Nevada would not be
reasonable. Bancroft & Masters v. Augusta Natl
Inc., 223 F.3d 1082, 1086 (9th Cir. 2000).
Purposeful Availment or Purposeful Direction
Purposeful availment is often used for both
purposeful availment and purposeful direction, but
the two are distinct concepts. Schwarzenegger, 374
F.3d at 802 (citing Harris, 328 F.3d at 1130).
Purposeful availment is most often used in suits
regarding contracts whereas purposeful direction is
associated with tort suits. Id. Since patent
infringement cases are most akin to tort actions,
purposeful direction is more appropriate in
determining the defendants contacts with Nevada.
Panavision, 141 F.3d at 1321.
Purposeful direction looks for evidence that
the defendants actions outside Nevada are directed
at Nevada, such as distributing goods in Nevada
that originated in Taiwan. Keeton v. Hustler
Magazine, Inc., 465 U.S. 770, 77475 (1984). The
Supreme Court has held that Due Process permits
14a

the exercise of personal jurisdiction over a defendant
who purposefully direct[s] his activities at
residents of a forum, even in the absence of physical
contacts with the forum. Burger King v. Rudzewiz,
471 U.S. 462, 476 (1985) (citing Keeton, 465 U.S. at
77475). Purposeful direction is evaluated under the
three-part effects test traceable to the Supreme
Courts decision in Calder v. Jones, 465 U.S. 783,
787-91 (1984). The Calder effects test is
summarized:
(a) Defendant committed intentional acts;
(b) expressly aimed at the forum state;
(c) causing harm, the brunt of which is
suffered and which the defendant
knows is likely to be suffered in the
forum state.
Harris, 328 F.3d at 1131.
(a) Committed an intentional act
The Restatement (Second) of Torts defines
act to have specialized meaning denoting an
external manifestation of the actors will and does
not include any of its results, even the most direct,
immediate, and intended. 2, 1964; Schwarzenegger,
374 F.3d at 806. In the Complaint, the plaintiffs
claim that Accuaire, and Porauto committed an
intentional act directed at Nevada by placing the
infringing product into the stream of commerce, via
an established distribution channel, with the
knowledge that such products are sold in Nevada.
Under the definition given in Restatement (Second)
15a

of Torts, the intentional act is completed once the
external will of Accuaire and Porauto is manifest by
entering the infringing product into the stream of
commerce with knowledge that it would be sold or
distributed in Nevada.
Mr. Hsu committed intentional acts by
becoming personally involved with JSP in
furtherance of the infringement. Mr. Hsu personally
advised JSP with regard to a lawsuit for patent 057
infringement brought by Kabo in Nevada. The
result of Mr. Hsus advice is irrelevant. What is
relevant is that Mr. Hsu intentionally acted with the
purpose of influencing business in Nevada.
(b) Expressly aimed at the forum state
In the express aiming analysis, the act must
be a deliberate attempt to cause harm in the forum
state and not an untargeted negligence. Calder, 465
U.S. at 789. Plaintiffs allege that Accuaire and
Porauto expressly aimed at Nevada by creating a
direct channel for distributing the infringing product
in Nevada via JSP. Creating a distribution channel
for a product is a deliberate act intended to target
Nevada as a specific market. By cultivating
business relationships with a Nevada corporation,
defendants expressly aimed at Nevada as a market.
Further, Accuaire and Porauto have maintained a
10-year business relationship with JSP. Conducting
on-going business directly with JSP is not
untargeted negligence, but express aiming at
Nevada. Plaintiffs also allege that defendants
16a

posted a $15 million New Taiwan Dollar Bond
(approximately $515,000 U.S. dollars) in Taiwan to
keep shipments of infringing product flowing to JSP
even after plaintiffs began legal proceedings to
obtain an injunction. Defendants then sent a
communication to JSP ensuring shipments of the
infringing product. Posting a bond and ensuring
shipment of product to a Nevada corporation
indicate strongly that defendants deliberately
targeted or expressly aimed their activities at
Nevada.
The plaintiffs affidavit states that Mr. Hsu
was personally involved with JSP and provided
advice to JSP regarding a pending lawsuit in Nevada
pertaining to the 057 patent. Mr. Hsu expressly
aimed at Nevada when he gave advice to JSP
regarding arguments in the lawsuit over 057 patent
infringement brought by plaintiffs. Mr. Hsu also
personally conducted business in Nevada in
furtherance of getting the infringing product into the
Nevada market.
(c) Causing harm that the defendant knows is likely
to be suffered in the forum state
If defendants were aware they were infringing
the 057 patent and continued to commit acts in
Nevada furthering that infringement, then the
defendants would have caused harm likely to be
suffered in Nevada. Plaintiffs allege that Accuaire
and Porauto were aware of the infringement claims,
but showed intent to continue the infringement by
17a

posting a bond in order to ensure shipments of the
infringing product to Nevada. Mr. Hsu was
personally aware of the claims of infringement, and
he intentionally acted to continue harm to plaintiffs
by giving advice to JSP in furtherance of the
infringement.
(2) Forum Related Activities
When determining whether the claims arise
out of forum related activity, the Ninth Circuit has
established a but for test. Ballard v. Savage, 65
F.3d 1495, 1500 (1995) (citing Shute v. Carnival
Cruise Lines, 897 F.2d 377 (9th Cir. 1990), rev on
other grounds, 499 U.S. 585 (1991)). The plaintiffs
must show that their claim could not have arisen
but for Mr. Hsus, Accuaires, or Porautos contacts
with Nevada. Id. It is the general rule under
United States patent law that no infringement
occurs when a patented product is made and sold in
another country. Microsoft Corp. v. AT&T Corp.,
550 U.S. 437, 441 (2007). The manufacturing of the
infringing product in Taiwan is not an infringement
of a U.S. patent. On the other hand, importing
infringing product into the United States, without
authority, is an infringement of an exclusive right.
Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct.
1351, 1367 (2013); 35 U.S.C. 271(a). Plaintiffs
allege that, through their connection with JSP,
Accuaire and Porauto distribute the infringing
product throughout Nevada. But for these actions,
there would have been no infringement of the 057
patent in Nevada. Mr. Hsu giving advice to JSP
18a

regarding the lawsuit, may not have independently
infringed the patent, but it was an act intended to
further or allow the infringement to take place.
Personally conducting business on behalf of Accuaire
and Porauto at the SEMA Show and with JSP in
order to create channels of distribution in Nevada,
would be a but for cause of infringement. Since
Mr. Hsu, Accuaire, and Porauto have offered no
factual basis to refute the plaintiffs accusation, this
Court will construe the facts in the light most
favorable to the plaintiffs.
(3) Reasonableness
Once the plaintiffs meet the first two prongs,
the burden of proof shifts to the defendants to
present a compelling case that the presence of some
other considerations would render jurisdiction
unreasonable. Burger King, 471 U.S. at 476-77. In
addressing the reasonableness question, this Court
will consider seven factors:
(i) Extent of defendants purposeful
interjection (ii) Burden on the
defendant in defending the forum,
(iii) Extent of conflict with the
sovereignty of the Defendants state,
(iv) The forum states interest in
adjudicating the dispute, (v) The most
efficient judicial resolution of the
controversy, (vi) The importance of the
forum to plaintiffs interest in
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convenient and effective relief, and
(vii) Existence of an alternative forum.
Harris, 328 F.3d at 1132. No single factor is
dispositive; this Court must balance all seven
factors. Core-Vent Corp. v. Nobel Industries AB, 11
F.3d 1482, 1488 (1993).
(i) Purposeful Interjection
Purposeful interjection is still a factor in
determining overall reasonableness even though
plaintiffs have established minimum contacts.
Harris, 328 F.3d at 1132 (citing Ins. Co. of North
America v. Marina Salina Cruz, 649 F.2d 1266, 1271
(9th Cir. 1981)). As detailed previously, Mr. Hsus,
Accuaires, and Porautos contacts with Nevada are
sufficient in regard to the plaintiffs claim. Accuaire
and Porauto have an on-going business relationship
with a Nevada corporation to distribute the
infringing product throughout Nevada. Mr. Hsu is
personally involved with JSP to the point that they
solicited his advice regarding lawsuits involving the
infringing product. Defendants paid a significant
sum to ensure that shipments of the infringing
product would continue to be available to the Nevada
corporation. This factor falls in favor of the plaintiff.
(ii) Defendants Burden in Litigating
The unique burden placed upon one who
must defend oneself in a foreign legal system should
have significant weight in assessing the
reasonableness of stretching the long arm of
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personal jurisdiction over national borders. Asahi
Metal Ind. v. Superior Court, 480 U.S. 102, 114
(1987). Defendants state that if they are forced to
litigate in Nevada, it would be a significant burden.
Defendants claim that all the evidence and
witnesses are in Taiwan. Further, all the
documentation is in Chinese, the native language of
both the plaintiffs and defendants. Language is a
significant barrier. However, since infringement of a
U.S. patent does not happen until an infringing
action takes place in the United States, not all
evidence or documentation would be in Taiwan.
28 U.S.C. 1400(b). Some evidence of the
infringement would be in the United States.
Nonetheless, since the Supreme Court in Asahi has
given added weight to the burden of defending
oneself in a foreign land, this factor falls to the
defendants.
(iii) Sovereignty
Litigation against an alien defendant creates
a higher jurisdictional barrier than litigation against
a citizen from a sister state because important
sovereignty concerns exist. Sinatra v. National
Enquirer, Inc., 854 F.2d 1191, 1199 (9th Cir. 1988).
Although this factor is important, it is not
controlling. Gates LearJet Corp. v. Jensen, 743 F.2d
1325, 1333 (9th Cir. 1984). Defendants claim that
Taiwan has the greater interest in litigating conflicts
between citizens of Taiwan. Generally, that is true.
However, the Complaint is in regard to a U.S. patent
and conduct that took place within the United
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States. Although the claim could be brought in a
Taiwan court, Taiwan does not have a significant
interest in the resolution of the claim. This factor
favors the plaintiffs.
(iv) Forum States Interest
A forum state has an interest in seeking
redress for harms done within the forum. Gordy v.
Daily News, L.P., 95 F.3d 829, 836 (9th Cir. 1996)
(citing Sinatra, 854 F.2d at 1200). The 057 patent is
a U.S. patent and the United States has an interest
in protecting patents issued by the United States.
The infringing conduct took place in Nevada, and
Nevada has an interest i[n] seeking redress for
harms taking place in Nevada. This factor falls in
favor of the plaintiffs.
(v) Efficient Resolution
To determine which forum could most
efficiently resolve the dispute, courts look to the
location of evidence and witnesses. Caruth v.
International Psychoanalytical Assn, 59 F.3d 126,
129 (9th Cir. 1995). This factor is not weighed as
heavily anymore with the advances in
communication and travel. Id., Panavision, 141
F.3d at 1323-24. As noted previously, defendants
claim that all the evidence, witnesses, and
documentation are in Taiwan. However, since the
infringement happened in the United States, a
significant portion of the evidence must be in the
United States. Defending a claim in Nevada could
increase the burden on the defendants. However,
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defendants have shown a previous ability to travel to
Nevada to conduct business and transmit
information. This factor, at best, comes out
neutrally.
(vi) Convenient and Effective Relief for Plaintiff
If Nevada were not a proper forum for
litigation, the plaintiffs would be forced to litigate in
Taiwan. This would not present an obvious
inconvenience since Taiwan is the home of both the
plaintiffs and the defendants. This factor falls in
favor of the defendants.
(vii) Alternative Forum
The burden of proving the unavailability of an
alternative forum is on the plaintiffs. Core-Vent, 11
F.3d at 1490. Plaintiffs have not demonstrated the
unavailability of an alternative forum. The only
evidence provided by the plaintiffs is in the affidavit
where they state that they are unaware of another
United States jurisdiction that would have personal
jurisdiction over the defendants. Defendants assert
that Taiwan is an acceptable jurisdiction. This
factor falls more in favor of defendants.
Overall, with all seven factors weighed and
considered, the defendants have not made a
compelling case showing that jurisdiction in Nevada
would create an unreasonable burden. While
jurisdiction in Nevada may not be as convenient to
the defendants, it does not present an unreasonable
burden. The defendants have been conducting
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business in Nevada for over 10 years. If the
defendants have the ability to sufficiently conduct
business, they also have the ability to defend their
actions in Nevada.
The Court finds that the exercise of personal
jurisdiction over the defendants is appropriate.
Accordingly, for good cause shown,
THE COURT ORDERS that Defendants
Motion to Dismiss for Lack of Personal Jurisdiction
(#10) is DENIED.
DATED this 20th day of September, 2013.

/s/ Lloyd D. George
Lloyd D. George
United States District Judge





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Filed: 06/20/2014
NOTE: This order is nonprecedential.
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
______________________________________________

IN RE PORAUTO INDUSTRIAL CO., LTD.,
ACCUAIRE CORP. AND CHIH-HSIANG HSU,
Petitioners.
______________________________________________
2014-130
______________________________________________
On Petition for Writ of Mandamus to the
United States District Court for the District of
Nevada in No. 2:12-cv-01859-LDG-NJK, Judge
Lloyd D. George.
______________________________________________
ON PETITION
______________________________________________

Before LOURIE, DYK, and REYNA, Circuit Judges.
PER CURIAM.
ORDER
Petitioners Porauto Industrial Co., Ltd., et al.,
filed a petition for panel rehearing.
Upon consideration thereof,
IT IS ORDERED THAT:
The petition for panel rehearing is denied.
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FOR THE COURT
June 20, 2014 /s/ Daniel E. OToole
Date Daniel E. OToole
Clerk of Court