Beverly Hills Fan Company v. Royal Sovereign Corp. And Ultec Enterprises Co., Ltd.

This is a patent infringement case in which we are called upon to determine whether the district, court properly declined to exercise personal jurisdiction over foreign (from the standpoint of the forum) accused infringers or whether, applying the stream of commerce theory, plaintiff made the required jurisdictional showing. Beverly Hills Fan Company (Beverly) appeals the judgment of the United States District Court for the Eastern District of Virginia (Civil Action No. 91-1834-A), dated March 6, 1992, dismissing Beverly’s complaint for lack of personal jurisdiction over defendants Royal Sovereign Corp. (Royal) and Ultec Enterprises Go., Ltd. (Ultec). That judgment was entered upon defendants’ motion brought pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. We *1560 reverse and remand for further proceedings consistent with this opinion.

BACKGROUND

Beverly is the current owner of U.S. Design Patent No. 304,229 (the ’229 patent), which issued on October 24,1989.' That patent is directed to the design of a ceiling fan. Beverly is incorporated in Delaware and has its principal place of business in California.

Ultec is the manufacturer of a ceiling fan which Beverly alleges infringes the ’229 patent. Ultec is incorporated in the People’s Republic of China (PRC) and manufactures the accused fan in Taiwan. Royal imports into and distributes the accused fan in the United States. It is incorporated in New Jersey.

On December 11, 1991, Beverly filed suit against Ültec and Royal in the United States District Court for the Eastern District of Virginia. Beverly’s complaint alleged in relevant part that both defendants are infringing and inducing infringement of the ’229 patent by selling the accused fan to customers in the United States, including customers in Virginia; and that defendants are selling the accused fan to the Virginia customers through intermediaries.

Ultec and Royal subsequently filed a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. In support of their motion, defendants submitted several declarations. A first declaration was from James Cheng (the Cheng Declaration), the President of Ultec. In that declaration, Mr. Cheng stated that Ultec has no assets or employees located in Virginia; has no agent for the service of process in Virginia; does not have a license to do business in Virginia; and has not directly shipped the accused fan into Virginia. A second declaration was from T.K. Lim (the Lim Declaration), the President of Royal. In that declaration, Mr. Lim stated that Royal, as well, has no assets or employees in Virginia; has no agent for the service of process in Virginia; does not have a license to do business in Virginia; made a one-time sale of unrelated goods to Virginia in 1991 which represented less than three percent of Royal’s total sales that year; and has not sold the accused fan to distributors or anyone else in Virginia.

Beverly then submitted several declarations in opposition to the motion. A first declaration was from Lyndal L. Shaneyfelt (the first Shaneyfelt Declaration), a private investigator. In that declaration, Mr. Sha-neyfelt stated that, on December 4, 1991, he purchased one of the accused fans from the Alexandria, Virginia outlet of a company known as Builder’s Square; that a manual accompanying the fan identified Royal as the source of the fan; that the fan was accompanied by a warranty which Royal would honor; and that Builder’s Square has approximately six retail outlets located throughout Virginia. A.second declaration was from Shelley A. Greenberg (the Greenberg Declaration), the President of Beverly. In that declaration, Mr. Greenberg stated that Beverly does a substantial amount of business in Virginia; that Beverly’s Virginia customers include all six Builder’s Square outlets; and that Beverly sells a commercial embodiment of the ’229 patent to customers in Virginia through these outlets.

The trial court, after argument from the parties and consideration of their written submissions, ruled on the motion. The court correctly recognized that there were two limits to its jurisdictional reach: Virginia’s long-arm statute and the Due Process Clause of the U.S. Constitution. 1 The court found its analysis of the limits imposed by the Due Process Clause conclusive of the matter.

Relying on Supreme Court precedent as interpreted by the Fourth Circuit in Chung v. NANA Development Corp., 783 F.2d 1124 (4th Cir.), cert. denied, 479 U.S. 948, 107 S.Ct. 431, 93 L.Ed.2d 381 (1986), the court concluded that the relevant inquiry was whether defendants’ contacts with the forum were sufficiently purposeful that litigation in *1561 the forum could reasonably have been foreseen. The only purposeful contact the court considered relevant was the one-time shipment of unrelated goods referred to in the Lim Declaration. 2 Finding that such contact was not sufficient to make litigation in Virginia reasonably foreseeable, the court granted the motion to dismiss. On March 6,1992, an order granting judgment for defendants was entered consistent with the court’s ruling.

Beverly subsequently filed a motion for reconsideration of the March 6 judgment. In support of that motion, Beverly submitted a second declaration by Mr. Shaneyfelt (the second Shaneyfelt Declaration). In that declaration,. Mr. Shaneyfelt stated that, as of March 17, 1992, based on telephone conversations with unnamed employees at the six Builder’s Square outlets, fifty-two of the accused fans were available for sale at these outlets. Defendants then moved to strike this evidence, and opposed the motion for reconsideration. On April 8, 1992, the court denied the motion for reconsideration, presumably denying the motion to strike. 3 This appeal followed.

DISCUSSION

1.

During the pendency of this appeal, defendants moved in this court to strike the second Shaneyfelt Declaration on the grounds that it is not properly before us. A motions panel of this court denied defendants’ motion, deferring the matter to the merits panel. We turn to this issue first. When appropriate, we are guided by Fourth Circuit law on the purely procedural aspects of this question. 4

Defendants make several arguments why we cannot consider the second Shaney-felt Declaration. Their first argument is premised on a purported deficiency in Beverly’s papers. The first sentence in Beverly’s notice of appeal refers only to the March 6 Order and Judgment:

Notice is hereby given that [Beverly] hereby appeals ... from the Order and Judgment dated March 6, 1992, granting Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction in Civil Action No. 91-1834-A.

Thus, argue defendants, as to the April 8 decision on the motion for reconsideration, the notice fails to comply with Fed.R.App.P. 3(c), which states in relevant part: “The notice of appeal ... shall designate the judgment, order or part thereof appealed from.” Defendants further argue that since a failure to comply with Fed.R.App.P. 3(c) is a fatal jurisdictional defect, Torres v. Oakland Scavenger Co., 487 U.S. 312, 314, 108 S.Ct. 2405, 2407, 101 L.Ed.2d 285 (1988), this court would lack jurisdiction to review the April 8 decision, and thus the power to consider the record pertaining to that decision, including the second Shaneyfelt Declaration.

Defendants’ focus is misplaced and too narrow; the proper focus is on the record as a whole. See Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct., 227, 229, 9 L.Ed.2d 222 (1962); 9 James W. Moore et al., Moore’s Federal Practice, ¶ 203.17[2], at 3-79 to -82 (2d ed. 1993). The second sentence of Beverly’s notice expressly refers to the April 8 decision. 5 The parties briefed and argued the merits of that decision. And there is a substantial connection between the March 6 judgment, which is referred to in the first sentence of the notice, and the April 8 decision. Under similar circumstances, courts have not'hesitated to exercise jurisdiction over a judgment or decision not expressly referred to in the notice of appeal. See Trust Co. Bank v. *1562 United States Gypsum, Co., 950 F.2d 1144, 1147-48 (5th Cir.1992); Lockman Found. v. Evangelical Alliance Mission, 980 F.2d 764, 772 (9th Cir.1991); Matute v. Procoast Navigation Ltd., 928 F.2d 627, 629-30 (3d Cir.), cert. denied, — U.S. —, 112 S.Ct. 329, 116 L.Ed.2d 270 (1991); Matarese v. LeFevre, 801 F.2d 98, 105-06 (2d Cir.1986), cert. denied, 480 U.S. 908, 107 S.Ct. 1353, 94 L.Ed.2d 523 (1987). .

Defendants next argue that we cannot consider the second Shaneyfelt Declaration because there has been no showing that the information therein was “newly discovered evidence which by due diligence could hot have been discovered [earlier]” as required by Fed.R.Civ.P. 60(b)(2). But Rule 60(b)(2) is not governing. The universal rule is that “if a post-judgment motion is filed within ten days of the entry of judgment and calls into question the correctness of that judgment it should be treated as a motion under Rule 59(e), however it may be formally styled.” Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir.1978); see also Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173 (5th Cir.1990); Tylo Sauna, S.A. v. Amerec Corp., 826 F.2d 7, 8 (Fed.Cir.1987); Vreeken v. Davis, 718 F.2d 343, 345 (10th Cir.1983); Lyell Theatre Corp. v. Loews Corp., 682 F.2d 37, 40-41 (2d Cir.1982). Since Beverly’s motion for reconsideration meets these criteria, it is considered to have been brought under Rule 59(e) rather than Rule 60(b). Defendants’ argument is thus off point. 6

Defendants next argue that the second Shaneyfelt Declaration cannot be considered because it is based on hearsay and thus inadmissible. However, defendants have not cited any authority in support of such a rule. And we are unaware of any, either in the Federal Rules of Civil Procedure 7 or elsewhere. 8 Moreover, such a rule would be particularly inappropriate under the circumstances of this case since the evidence bears circumstantial indicia of reliability so that it very well could be admissible at trial notwithstanding its hearsay nature. See Fed.R.Evid. 803(24). 9 .

Defendants were given the opportunity to challenge this evidence. Although the specific employees who provided the information were not named, the addresses of the Builder’s Square outlets where these employees worked were provided. Defendants have not shown why they could not have independently surveyed the number of accused fans available for sale at these outlets. They can thus be said to have acquiesced in the trustworthiness of the evidence. For all the foregoing reasons, we decline to adopt the rule advanced by defendants.

The final evidentiary argument made by defendants is that the evidence cannot be considered since it relates to contacts with the forum occurring subsequent to the events giving rise to this litigation, and thus is irrelevant to whether specific jurisdiction can be exercised over the defendants. 10 The infor *1563 mation in the second Shaneyfelt Declaration was obtained about 3 months after the complaint was filed. In conjunction with the first Shaneyfelt Declaration, it indicates that, contemporaneously with the filing of the complaint, defendants were engaged in continuous shipment of substantial .numbers of the accused fan into Virginia. These shipments are the basis for Beverly’s allegations that defendants infringed and induced infringement of the ’229 patent.

The sole case on this point relied on by defendants, Farmers Insurance Exchange v. Portage La Prairie Mutual Insurance Co., 907 F.2d 911, 913 (9th Cir.1990), is inappo-site. That case involved a single tortious act which inflicted discrete injury on the victim. Defendant’s contacts with the forum after the commission of the tort had no relation to the cause of action, and thus were irrelevant to whether specific jurisdiction could be exercised over the defendant. Here, by contrast, the two causes of action, direct infringement and inducing infringement, both involve the continuous infliction of injury upon the victim. See Wilden Pump & Eng’g Co. v. Versa-Matic Tool, Inc., 20 USPQ2d 1788, 1790-91, 1991 WL 280844 (C.D.Cal.1991). The case is thus fundamentally different from that involving a single tort. In a case involving a continuous tort, it would be arbitrary to identify a single moment after which defendant’s contacts with the forum necessarily become irrelevant to the issue of specific jurisdiction. Cf. Bruno Wessel, Inc. v. McCourt, No. C92-079TEH, 1992 U.S.Dist. LEXIS 6230, at * 6-* 11 (N.D.Cal. May 4; 1992).

For all of the above reasons, we find defendants’ arguments on this issue unpersuasive; the second Shaneyfelt Declaration is properly a part of the record before us in this case.

2.

Paragraph 6 of the complaint alleges:

6. Ultec has for a time past and still is infringing and inducing infringement of the [’229 patent] by selling ceiling fans embodying the patented invention to customers in the United States including customers in the Eastern District of Virginia through intermediaries and will continue to do so unless enjoined by this Court. (Emphasis added)

The thrust of this paragraph, insofar as it relates to jurisdiction in Virginia, is that Ul-tec is purposefully shipping and selling, through intermediaries, the accused fan to customers in Virginia, and that the shipping and selling are ongoing and continuous.

The evidence which, according to defendants, rebuts these allegations is paragraph 4 of the Cheng Declaration. But that paragraph only denies direct shipments and sales by Ultec into Virginia: 11

4. Ultec has not imported nor directly sold any of its fans to importers or anyone else in Virginia. (Emphasis added)

Thus, there is not even direct contravention of the allegation, as the plaintiffs paragraph speaks only in terms of shipments through intermediaries. Since they are not directly controverted, plaintiffs factual allegations are taken as true for purposes of determining jurisdiction in the Virginia district court.

Paragraph 7 of the complaint alleges:

7. [Royal] has for a time past and still is infringing and inducing infringement of the [’229 patent] by selling ceiling fans through an intermediary to customers in the Eastern District of Virginia, such fans embodying the patented invention, and [Royal] will continue to do so unless enjoined by this Court. (Emphasis added)

The thrust of this paragraph, insofar as it relates to jurisdiction in Virginia, is that Royal is placing the accused fans into the chain of commerce, which includes shipping the fans into Virginia for sale to customers through an intermediary (Builder’s Square). Defendants’ response is Paragraph 2 of the Lim Declaration. Paragraph 2, however, is either inartfully phrased or craftily written. It states:

2. [Royal] imports ceiling fans from [Ul-tec]. [Royal] has never sold a fan to dis *1564 tributors or to anyone else in Virginia. (Emphasis added)

The phrase “in Virginia” may modify either the verb “sold” or the nouns “distributors” or “anyone else.” Either way, Ultec’s response does not directly contravene plaintiffs allegations; again, plaintiffs factual allegations must be taken as true.

Defendants next argue that Beverly has submitted no evidence showing that defendants’ shipments into Virginia were purposeful or knowing. However, Beverly has shown by the two Shaneyfelt Declarations that the commercial relationship with Builder’s Square was ongoing, and obviously intentional. It is undisputed that at least fifty-two Ultec fans were present in Virginia bearing Royal’s warranty, reflecting an ongoing relationship with the Virginia retailer and customers. See Kearns v. Wood Motors, Inc., 204 USPQ 485, 491 (E.D.Mich.1978). From these ongoing relationships, it can be presumed that the distribution channel formed by defendants and Builder’s Square was intentionally established, and that defendants knew, or reasonably could have foreseen, that a termination point of the channel was Virginia.

3.

In light of the trial court’s conclusion to the contrary, based in part on a failure to draw the proper inferences from the undisputed facts, we must disapprove the court’s granting of the motion to dismiss. No additional development of the record is necessary for a decision on defendants’ jurisdictional motion. The matter presents a pure question of law. The specific question on which the matter turns is whether the Due Process Clause of the Federal Constitution or specific limiting provisions in Virginia’s long-arm statute preclude the exercise of jurisdiction in a case in which an alleged foreign infringer’s sole contact with the forum resulted from indirect shipments through the stream of commerce.

As a preliminary matter, we consider whether we are bound to apply Fourth Circuit law to this question. As previously noted, the Fourth Circuit is where the case arose; under Panduit Corp. v. All States Plastic Manufacturing Co., 744 F.2d 1564, 1574-75, 223 USPQ 465, 471 (Fed.Cir.1984), we apply the law of the Fourth Circuit to procedural matters that are not unique to patent law. Beverly argues that we are not bound to apply Fourth Circuit law in this case because the issue here is intimately related to substantive patent law. Thus, argues Beverly, we are free to develop our own law on this issue.

Beverly is correct. Although in one sense the due process issue in this case is procedural, it is a critical determinant of whether and in what forum a patentee can seek redress for infringement of its rights. As we explain more fully below, the stream of commerce theory has achieved fairly wide acceptance in the federal courts. But even when followed, the theory comes in several variants. The regional circuits have not reached a uniform approach to this jurisdictional issue. See, e.g., Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290, 226 USPQ 305 (3d Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 383, 88 L.Ed.2d 336 (1985) (no jurisdiction found); Honeywell, Inc. v. Metz Apparatewerke, 509 F.2d 1137, 184 USPQ 387 (7th Cir.1975) (jurisdiction found). Nor is there any apparent uniformity on the issue within the Fourth Circuit. 12 The application of an assumed Fourth Circuit law, or for that matter, the law of any particular circuit, would thus not promote our mandate of achieving national uniformity in the field of patent law. See Panduit, 744 F.2d at 1574, 223 USPQ at 470.

The creation and application of a uniform body of Federal Circuit law in this area would clearly promote judicial efficiency, *1565 would be consistent with our mandate, and would not create undue conflict and confusion at the district court level. 13 Under circumstances such as these, we have held we owe no special deference to regional circuit law. See, e.g., Biodex Corp. v. Loredan Biomedical, Inc., 946 F.2d 850, 855-59, 20 USPQ2d 1252, 1256-61 (Fed.Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 2957, 119 L.Ed.2d 579 (1992).

4.

The Supreme Court stated in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), “due process requires ... that in order to subject a defendant to a judgment in personam, 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.’ ” Id. at 316, 66 S.Ct. at 158 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)) (Second emphasis added). Later eases have clarified that the minimum contacts must be ‘purposeful’ contacts. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985) (purposeful minimum contacts the ‘constitutional touchstone’ of the due process analysis). The requirement for purposeful minimum contacts helps ensure that non-residents have fair warning that a particular activity may subject them to litigation within the forum. See Burger King, 471 U.S. at 472, 105 S.Ct. at 2182; see also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). Fair warning is desirable for nonresidents are thus able to organize their affairs, alleviate the risk of burdensome litigation by procuring insurance and the like, and otherwise plan for the possibility that litigation in the forum might ensue. See World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567.

Defendants argue that their contacts with Virginia were insufficient to give them warning that litigation in Virginia might ensue. We disagree. The allegations are that defendants purposefully shipped the accused fan into Virginia through an established distribution channel. The cause of action for patent infringement is alleged to arise out of these activities. No more is usually required to establish specific jurisdiction. See Burger King, 471 U.S. at 472-73, 105 S.Ct. at 2182; Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774-75, 104 S.Ct. 1473, 1478-79, 79 L.Ed.2d 790 (1984). 14

Defendants argue that the exercise of jurisdiction over them is foreclosed by the holding in World-Wide Volkswagen. In WorldWide Volkswagen, jurisdiction did not lie over an alleged foreign tortfeasor whose product was transported into the forum state through the unilateral actions of a third party having no pre-existing relationship with the tortfeasor. 444 U.S. at 298, 100 S.Ct. at 567. There was thus no purposeful contact by the tortfeasor with the forum, and thus no basis for exercising personal jurisdiction over the defendants. Here, .by contrast, the allegations are that the accused fan arrived in Virginia through defendants’ purposeful shipment of the fans through an established distribution channel. 15 The Court in World *1566 Wide Volkswagen specifically commented on the significance of this factual pattern: “[I]f the sale of a product of a manufacturer or distributor ... is not simply an isolated occurrence, but arises from the efforts of the [defendants] to serve, directly or indirectly, the market for its product ..., it is not unreasonable to subject it to suit.” Id. at 297, 100 S.Ct. at 567. And “[t]he forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” Id. at 297-98, 100 S.Ct. at 567.

Since the decision in Worldr-Wide Volkswagen, lower courts have split over the exact requirements of the stream of commerce theory. See Vermeulen v. Renault, U.S.A, Inc., 985 F.2d 1534, 1548 & n. 17 (11th Cir.1993). In Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987), the Supreme Court reflected that split in the context of a case in which jurisdiction in California state courts was asserted for the purpose of requiring a Japanese corporation to indemnify a Taiwanese corporation on the basis of a sale made in Taiwan and a shipment of goods from Japan to Taiwan.

All of the Justices agreed that on the facts of the case before them, jurisdiction did not lie in California; and apparently all of the Justices agreed that the stream of commerce theory provides a valid basis for finding requisite minimum contacts. The split was over the exact requirements for an application of the theory.

Four Justices were of the view that an exercise of personal jurisdiction requires more than the mere act of placing a product in the stream of commerce. As Justice O’Connor expressed it, there must be in addition “an action of the defendant purposefully directed toward the forum State.” As ahi, 480 U.S. at 112, 107 S.Ct. at 1032. (Emphasis in original) But four of the Justices considered the showing of ‘additional conduct’ unneeded:

“The stream of commerce refers not to unpredictable currents or eddies, but to the regular and anticipated flow of products from manufacture to distribution to retail sale.... A defendant who has placed goods in the stream of commerce benefits economically from the retail sale of the final product in the forum State, and indirectly benefits from the State’s laws that regulate and facilitate commercial activity.”

Id. at 117, 107 S.Ct. at 1034-35 (Brennan, White, Marshall, & Blackmun, JJ., concurring in part and concurring in the judgment). Justice Brennan, writing for these Justices, considered this view to be the prevalent view among most courts and commentators. Id. at 117-18 & n. 1, 107 S.Ct. at 1034-35 & n. 1 (Brennan, J., concurring in part and concurring in the judgment). 16

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. When viewed in the light of the allegations and the uncontroverted assertions in the affidavits, plaintiff has stated all of the necessary ingredients for an exercise of jurisdiction consonant with due process: defendants, acting in consort, placed the accused fan in the stream of commerce, they knew the likely destination of the products, and their conduct and connections with the forum state were such that they should reasonably have anticipated being brought into court there.

We are aware of five appellate decisions that address the stream of commerce theory in the context of intellectual property interests. In four cases, the courts found proper the exercise of personal jurisdiction over foreign defendants under circumstances not un *1567 like those present here. In Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty. Ltd., 647 F.2d 200, 209 USPQ 633 (D.C.Cir.1981), in an action for trademark infringement, two German plaintiffs sought to hale an Australian wine producer, its Australian subsidiary, a New York importer, and a District of Columbia liquor store into the District Court for the District of Columbia. The district court held that it lacked personal jurisdiction over the Australian defendants. It then declared that those defendants were indispensable parties, and thus dismissed the action against the other defendants.

The Court of Appeals for the District of Columbia reversed, holding that the district court could properly exercise jurisdiction over the Australian defendants. .The court first considered the limits imposed by the Due Process Clause, and concluded they did not prohibit the exercise of jurisdiction. “The Australian defendants ... arranged for introduction of their wine. into the United States stream of commerce with the expectation (or at least the intention and hope) that their products will be shelved and sold at numerous local outlets in diverse parts of the country. (Citations omitted.) As defendants recognize, therefore, the links between the claims in suit and the Australian defendants’ arrangements to develop and serve a market in the United States make the district court here a fair and reasonable forum, within due process constraints, for the action plaintiffs have brought.” Id. at 203, 209 USPQ at 636.

The court next considered the limits imposed by subsection A.4 of the District of Columbia’s long-arm statute, a subsection modeled after subsection A.4 of Virginia’s long-arm statute, discussed infra. Id. at 206-07 & n. 16, 209 USPQ at 638 & n. 16. Even though the plaintiffs were not residents of the forum, the court concluded that the ‘injury’ requirement was met because plaintiffs were selling their wine in the forum side-by-side with the wines of defendants. Id. at 206, 209 USPQ at 638. The ‘act or omission’ requirement was deemed met by defendants’ activities in attaching the disputed mark to their wine in Australia and then injecting the wine into the stream of commerce for sale in the United States. Id. 17

The other three cases, Dakota Industries, Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 20 USPQ2d 1460 (8th Cir.1991), Horne v. Adolph Coors Co., 684 F.2d 255, 217 USPQ 15 (3rd Cir.1982), and Honeywell, Inc. v. Metz Apparatewerke, 509 F.2d 1137, 184 USPQ 387 (7th Cir.1975), reach the same result on similar facts. These cases are arguably distinguishable from the present one in that the owner of the intellectual property at issue in those eases- was a resident of the forum. The Supreme Court, however, has made it clear that is not a determinative distinction:

[W]e have not to date required a plaintiff to have ‘minimum contacts’ with the forum State before permitting that State to assert personal jurisdiction over a nonresident defendant.... [Although] plaintiffs residence in the forum may, because of defendant’s relationship with the plaintiff, enhance defendant’s contacts with the forum ...[,] plaintiffs residence in the forum State is not a separate requirement, and lack of residence will not defeat jurisdiction established on the basis of defendant’s contacts.

Keeton v. Hustler Magazine, Inc.,