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September 26, 2005.

F&G RESEARCH, INC., Defendant.

The opinion of the court was delivered by: JEFFREY WHITE, District Judge

This matter comes before the Court upon consideration of the motion to dismiss for lack of personal jurisdiction filed by Defendant F&G Research, Inc. ("F&G"). Also before the Court are F&G's motion to dismiss for lack of subject matter jurisdiction and motion to transfer. In light of the Court's ruling on the motion to dismiss for lack of personal jurisdiction, those motions are DENIED AS MOOT.

On July 15, 2005, the Court heard oral argument on each of the pending motions, granted Plaintiff Primax Electronic Ltd.'s ("Primax") request for discovery on the issue of personal jurisdiction, and ordered supplemental briefing on that issue. The parties' supplemental briefing now is complete, and the Court concludes that no further oral argument is necessary as to that motion.*fn1 See N.D. Civ. L.R. 7-1(b). Having considered the parties' pleadings, relevant legal authority, the record in this case, and having had the benefit of oral argument, the Court GRANTS the motion to dismiss for lack of personal jurisdiction.


  Primax is a Taiwanese corporation, with a principal place of business in Taiwan. Although Primax is not a California corporation, it has a wholly-owned subsidiary, Polaris Electronics, Inc. in Pleasanton, California, and it does business with a number of companies located in California, including companies within the Northern District. (See Declaration of Brian Yang, ¶¶ 2-3).*fn2 Primax's customers within the United States are original equipment manufacturers ("OEMs"). (Id., ¶ 5.) These OEMs use Primax products but sell them under their own brand names. (Id.)

  F&G is a Florida corporation. It is undisputed that F&G has no offices, telephone numbers, assets, employees or property in California, and that F&G's sole business is licensing the patents in suit.

  On or about February 14, 2005, through its counsel in Florida, F&G sent a letter to Primax in Taiwan that states that Primax is "offering for sale and selling a scrolling mouse which may require a license under F&G's patent(s)." (Complaint, Ex. A.) The letter further states that "[w]e would appreciate it if you consider this an invitation to license F&G's patents at our standard, one-time, fully paid upon, non-refundable license . . . An indication of no interest will be interpreted by our client that you wish to continue potentially infringing activities which may subject your company to liability for patent infringement. We therefore urge you to contact the undersigned immediately with your comments or cease and desist from further sales of the products in question and account to F&G for past sales." (Id.) F&G has also engaged in similar conduct with other companies in California, including Logitech, Hewlett-Packard, and Kye International.*fn3 (See, e.g., Declaration of Debra Nye in Support of Plaintiff's Supplemental Brief Regarding Personal Jurisdiction ("Nye Decl."), Exs. A (Response to Interrogatory No. 2), D (Cease and Desist Letters); Supplemental Declaration of Debra Nye ("Nye Supp. Decl."), Ex. A.) The terms and conditions of those licenses have not been made a part of the record.

  On April 22, 2005, Primax initiated this declaratory relief action against F&G.


  A. Motion to Dismiss for Lack of Personal Jurisdiction

  1. Primax bears the burden of establishing that the Court has jurisdiction over F&G.

  A defendant may move for dismissal for lack of personal jurisdiction prior to trial. Fed.R.Civ.P. 12(b)(2). A court can decide the motion on the basis of affidavits and declarations submitted in response to the motion, or it can hold an evidentiary hearing. See Electronics for Imaging, Inc. v. Coyle, 340 F.3d 1344, 1349 (Fed. Cir. 2003).*fn4 Regardless of the procedure a court chooses, a plaintiff bears the burden of establishing a court's jurisdiction over a defendant.

  If a court determines that it will resolve a motion to dismiss for lack of personal jurisdiction "based on affidavits and other written materials in the absence of an evidentiary hearing, a plaintiff need only to make a prima facie showing that defendants are subject to personal jurisdiction." Electronics for Imaging, 340 F.3d at 1349. In that situation, a court must take uncontroverted allegations in a complaint as true and resolve factual conflicts in a plaintiff's favor. Id.; see also Akro Corp. v. Luker, 45 F.3d 1541, 1543 (Fed. Cir. 1995).

  2. F&G must have certain minimum contacts with the forum state.

  "Personal jurisdiction over an out-of-state defendant is appropriate if the relevant state's long arm-statute permits the assertion of jurisdiction without violating federal due process." 3D Systems, Inc. v. Aarotech Laboratories, Inc., 160 F.3d 1373, 1376-1377 (Fed. Cir. 1998); see also Akro, 45 F.3d 1541. California's long arm statute is co-extensive with federal due process requirements and, thus, the jurisdictional analyses under California law and federal due process are the same. 3D Systems, 160 F.3d at 1377. This Court must determine whether F&G has "minimum contacts" with this forum such that the exercise ...

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