United States: How To Establish Personal Jurisdiction In An IP Case - Part III

By David Wille

BAKER & BOTTS, L.L.P.

Dallas, Texas

A. Stream of Commerce

B. Advertising

C. Internet Web Sites

D. Piercing the Corporate Veil/Agency

E. National Contacts Theory

F. Calder Effects Test

Although each case may present its own unique facts, some personal jurisdiction issues arise frequently in IP cases. These issues arise even after one accepts the proper location for the tort. This Part addresses some common jurisdictional issues in context of IP cases and offers some analysis as to how such issues should be approached.

As described above, courts seeking to decide an issue of personal jurisdiction look for acts on the part of the defendant amounting to purposeful availment of a connection with a particular state. One type of purposeful availment is particularly relevant in some IP cases. The Supreme Court has approved of a doctrine commonly referred to as the stream of commerce theory. Under this theory, a corporation that places its products into the stream of commerce with the expectation that they will be purchased in the forum state is subject to jurisdiction for disputes arising out of such sales (see endnote 37). Thus, if a corporation makes efforts, either directly or indirectly, to serve a particular market, it is not unreasonable to subject the corporation to suit in that market where the product injures the owner or a third party (see endnote 38). Stream of commerce theory is especially relevant when trying to obtain jurisdiction over a manufacturer that delivers its products to a distributor in a different state, or, more commonly, in a different country.

Unfortunately, the Supreme Court has not clearly delineated the boundaries of this doctrine. In Asahi Metal Industry Co. v. Superior Court,(see endnote 39) a plurality of the Court rejected personal jurisdiction over a foreign manufacturer that manufactured tire valves that eventually found their way to California. The plurality opinion states that the placement of a product, without more, into the stream of commerce does not create a purposeful connection with the forum state, nor does the defendant's awareness that the product will eventually be sold in the forum state (see endnote 40). Instead, the plurality apparently demands more significant contacts, such as some product feature designed in a specific way based upon state regulation or the appointment of a distributor to serve a particular state. If the plurality opinion becomes the predominant view in IP cases, plaintiffs may attempt to use the national contacts approach embodied in the current version of Rule 4 of the Federal Rules of Civil Procedure to obtain jurisdiction over alien corporations in patent, trademark, and copyright cases if minimum contacts with a particular state are lacking. Of course, four other justices in Asahi reaffirmed a broad view of the stream of commerce theory. If their view prevails, then stream of commerce theory will be a more potent tool to use in obtaining personal jurisdiction in IP cases.

In the area of patents, the Federal Circuit has approved of the stream of commerce theory in general but has not chosen explicitly between the two approaches in Asahi. In Beverly Hills Fan Co. v. Royal Sovereign Corp., (see endnote 41) the Federal Circuit held that the stream of commerce theory subjected a defendant to jurisdiction who shipped an accused product into the forum state through an established distribution channel (see endnote 42). The defendants included a Chinese manufacturer and a United States importer/distributor of the accused product who knew the likely destination of the accused products. Although the Federal Circuit states that jurisdiction would be proper under either of the two views expressed in Asahi, this is simply not the case. The Federal Circuit's reasoning is consistent with the more liberal Brennan plurality but not the more restrictive O'Connor plurality--the Federal Circuit based jurisdiction primarily upon the existence of an established distribution channel without determining whether the foreign defendant knew the extent of the distribution channel. Under the Federal Circuit's view, jurisdiction would presumably be appropriate based upon the stream of commerce theory where the defendant only knew that his products were to be distributed in the United States. The restrictive Asahi plurality opinion apparently rejects this view. Thus, if the Supreme Court scales back the stream of commerce theory, the Federal Circuit's current view of the doctrine may well have to change. In the trademark area, courts have generally adopted the more liberal view of the stream of commerce test (see endnote 43). Some copyright cases also take a liberal view of the stream of commerce theory, while other espouse the narrow view (see endnote 44).

Advertising is an area where courts have followed divergent approaches, particularly in trademark cases (see endnote 45). Some courts have held that advertising in a state subjects the defendant to jurisdiction in the state where the advertising is circulated (see endnote 46). Other courts have found that advertising alone, even if related to the litigation, is not enough to establish jurisdiction (see endnote 47). Because advertising is frequently widespread, plaintiffs seeking to establish jurisdiction should include advertising in any discovery conducted on the jurisdictional issue.

The propriety of jurisdiction depends upon the nature of the advertising. Plaintiffs relying upon advertising as a relevant jurisdictional contact need to explain why the advertising is relevant to the cause of action. In trademark cases, advertising that contains the allegedly infringing mark is relevant because offers for sale using an allegedly infringing mark give rise to a cause of action for trademark infringement and constitute a tort wherever the advertising is distributed. Recall from the previous discussion that trademark infringement occurs where the passing off occurs. Where advertising is part of the passing off, the tort occurs wherever the advertising is distributed, even if no sales are made (see endnote 48). Some courts view national advertising as irrelevant because it is not aimed at a specific state (see endnote 49). This reasoning seems questionable as national advertising shows an effort to serve a national market. The fact that the trademark owner suffers tortious injury in many states should be more of a concern than suffering tortious injury in only one state. Still, the trademark plaintiff seeking to establish jurisdiction should avoid this controversy by attempting to show some type of targeted advertising such as a direct mailing campaign (see endnote 50). Similarly, where an advertisement constitutes an alleged copyright infringement, the advertiser should be subject to personal jurisdiction wherever the infringing advertisement is distributed (see endnote 51).

Advertising has sometimes been thrown in as a plus factor in certain IP cases. That is, where some infringing products have been sold in the jurisdiction, the court will often refer to the fact that the product was advertised in the jurisdiction as one act justifying jurisdiction (see endnote 52). Such cases may or may not properly inject the advertising into the jurisdictional calculus. Most of these cases involve specific jurisdiction. Thus, the advertising is only relevant to jurisdiction if the cause of action arises out of or relates to the advertising. However, because courts often refer to advertising along with other factors, a plaintiff should refer to any forum advertising in seeking to establish jurisdiction.

Patent owners now should be more concerned about advertising. Offering an infringing product for sale now constitutes infringement (see endnote 53). Those offers might arise through advertisements with toll free phone numbers (in print, on the radio, on tv, on the Internet), through mass mailings, or through catalog sales. Any of these types of actions may constitute offers for sale. Based upon the reasoning of Beverly Hills Fan, such infringement most likely should be deemed to occur where the offers for sale are made. At least one case has suggested that the party responsible for an advertisement offering an allegedly infringing product for sale causes tortious injury in the state in which the product is distributed (see endnote 54). A patent plaintiff should consider the usefulness of the defendant's advertising in seeking to obtain jurisdiction if the plaintiff cannot establish that an actual sale of an infringing product occurred in the jurisdiction.

Internet web sites have presented the courts with difficult personal jurisdiction questions. Several courts have held, quite wisely, that the operation of a web site does not subject a defendant to general personal jurisdiction in every state in the country (see endnote 55). Where specific jurisdiction is concerned, however, courts have split over the proper approach. Trademark infringement and trademark dilution have presented issues of personal jurisdiction in many of the initial web site cases. Patent and copyright cases may well raise similar issues in the future.

Some courts have held that jurisdiction is improper in trademark cases based solely upon the operation of a web page with an infringing or diluting trademark (see endnote 56). These courts tend to focus on the fact that users of the web page are the ones initiating contact with the web page (see endnote 57). Thus, a web page operator is not purposefully connecting himself with a particular state. Even if a web site owner knows that people in many different states will access his web page, he is not purposefully connecting himself with any particular state (see endnote 58).

Other courts have reasoned that the operation of a web page with an infringing or diluting trademark is enough to subject the operator to personal jurisdiction (see endnote 59). These courts reason that the web page operator knows that his web page will be accessed by people throughout the United States, and indeed throughout the world. Thus, a web page operator should reasonably anticipate being haled into court in any state (see endnote 60). Arguably, this approach is consistent with the Supreme Court's view that a defendant that achieves benefits through its conduct should also incur the burdens that go along with those benefits. Web page operators take advantage of the benefits of widespread communications over the Internet; they should also suffer the burdens when those widespread communications cause tortious injury. Courts should also keep in mind that Internet users do not "visit" web pages. A user instructs his web browser to request a copy of a web page. In response to that request, a web server sends a copy of the web page to the web browser. Thus, the web page operator has implemented an automated way of sending information to those who request it. One could deem such acts to be a purposeful connection with anyone receiving the web page.

Courts that have faced the issue of personal jurisdiction based upon the operation of a web page have not addressed in detail the proof required to establish jurisdiction. After all, just because the defendant operates a web page does not mean that state residents have accessed that page. Although the probability is high that at some point some state resident accessed a web page, this cannot always be proven. Defendants can be expected to raise such challenges in the future. When they do, plaintiffs should seek discovery. Certain web page operators monitor use of their web pages by keeping track of the internet domain (URL) of a web browser that requested a copy of the web page. Also, a web page operator may solicit communications from those who access the web page. These types of information may provide evidence that forum state residents have accessed the web page. Complaints by state residents to the plaintiff relating to intellectual property rights infringed by the web page may also be relevant.

Where an IP dispute involves multiple defendants, there is frequently some relationship between them. In such situations, jurisdiction over one defendant may be clearly established but jurisdiction may be unclear as to other defendants. In such a case, a plaintiff should determine whether a piercing the veil (alter ego) theory or agency theory will allow it to obtain jurisdiction.

Courts often confuse these two theories and their requirements, perhaps because attorneys confuse the courts. These theories, although related, are different and should be analyzed separately (see endnote 61). In both theories, the propriety of personal jurisdiction over a foreign defendant depends upon a relationship with another defendant (for convenience of discussion, the agent defendant). The easiest way to differentiate between the two theories is to draw an analogy to the difference between general and specific jurisdiction (see endnote 62). Piercing the veil is analogous to general jurisdiction, while agency is analogous to specific jurisdiction.

When a plaintiff seeks to obtain jurisdiction by piercing the veil, he is arguing that the foreign defendant and agent defendant are so interconnected in their activities that they should be considered to be the same legal entity (see endnote 63). Where such interconnectedness occurs, the agent defendant's contacts are attributed to the foreign defendant, subjecting the foreign defendant to jurisdiction. Like general jurisdiction, however, the events that are the subject of the lawsuit are not necessarily relevant to the issue. Instead, the focus is on whether corporate formalities are observed generally or whether the two defendants are so intertwined that they may be considered to be the same entity for jurisdictional purposes in any lawsuit.

On the other hand, when a plaintiff seeks to obtain jurisdiction using an agency theory, he is arguing that the foreign defendant caused the agent defendant to perform certain acts (see endnote 64). Where such control is demonstrated, the agent defendant's acts that were performed at the instance of the foreign defendant are attributed to the foreign defendant, subjecting the foreign defendant to jurisdiction in a lawsuit involving the attributed acts. Like specific jurisdiction, however, jurisdiction may only be established through contacts attributed to the foreign defendant that comprise at least a portion of the events at issue in the case. In other words, only those acts performed under control of the foreign defendant are attributed to that defendant. If these acts are sufficient to establish jurisdiction, then the foreign defendant is subject to jurisdiction based upon the agent defendant's conduct.

Piercing the corporate veil cases will generally involve attempts to obtain jurisdiction over (1) a parent corporation based upon the actions of a subsidiary, (see endnote 65) (2) an officer or shareholder of a corporation based upon the actions of the corporation, (see endnote 66) or (3) a subsidiary corporation based upon the actions of another subsidiary where both subsidiaries have a common parent corporation (see endnote 67). Agency cases may involve similar relationships because, for example, a subsidiary might act as an agent for distribution of an infringing product manufactured by its parent corporation. Even if the corporations are not so related as to have an alter ego relationship, the subsidiary might act as an agent of the parent corporation for the limited purpose of the distribution of the allegedly infringing product. Agency theory, however, may also be used in cases involving two unrelated companies. For example, agency theory might be used to obtain jurisdiction over an alien manufacturer based upon the activities of its U.S. distributor (see endnote 68).

The requirements for piercing the corporate veil may vary by state. The basic idea is the same, however--showing that the agent defendant and foreign defendant are so intertwined that they are basically the same entity. Some factors to consider include: (1) whether the agent corporation was properly formed, (2) whether corporate formalities are observed, (3) whether the corporation is properly capitalized, (4) whether there is a commingling of corporate funds with the funds of other individuals or entities, (5) the number of officers, directors or shareholders who control the corporation, (6) whether the officers, directors, or shareholders are preferred over creditors, (7) whether a related corporation shares the same officers, directors, and/or shareholders, (8) whether dividends are paid, (9) whether the dominant corporation or shareholder siphons off funds, (10) whether both corporations maintain separate records, (10) whether separate financial statements are used, (11) whether common tax returns are used, (12) whether each party sets its own business policies and practices, (13) whether employees are hired, fired, promoted, etc. by each company separately, (14) whether advertising is joint or controlled by another corporation, (15) whether trademarks are used by both companies, (16) whether employees of one company report to employees of the other company and (17) whether the defendant takes post-tort actions to deplete the corporation's assets (see endnote 69). Other factors may be relevant depending upon the particular case. In addition to the relevance of these factors, some states will require proof of fraud or that injustice will result unless the veil is pierced (see endnote 70). Other states will allow jurisdiction based solely on proof of fraud or potential injustice (see endnote 71). Some states will not require much of a showing at all and will impose jurisdiction over a parent corporation based solely upon the fact that its wholly owned subsidiary conducts business in the state (see endnote 72).

If a plaintiff seeks to establish jurisdiction based upon an alter ego theory in the face of a motion to dismiss by a foreign defendant, then the plaintiff should file a motion to take discovery relevant to those factors denoted above. Plaintiffs sometimes fail to take discovery and make superficial attempts to prove the alter ego relationship. Most courts will not find an alter ego relationship unless the plaintiff has made a substantial evidentiary showing. Superficial attempts at establishing an alter ego relationship are likely to result in dismissal (see endnote 73).

Some example alter ego cases may help to illustrate its application (see endnote 74). The examples discussed will primarily be patent cases. One should observe, however, that the type of IP case matters little in an alter ego situation. Because the alter ego inquiry seeks to determine whether two parties should be treated as one for jurisdictional purposes no matter what is at issue in the lawsuit, the particular dispute is normally irrelevant. Like general jurisdiction cases, then, precedent from all types of cases will be relevant to the alter ego inquiry.

In Milltronics Inc. v. Hawk America, Inc.,(see endnote 75) the court distinguished between legal liability for a corporation's actions and the alter ego relationship necessary to establish jurisdiction. The foreign defendants had their corporate charter revoked by the state of Arizona and allegedly infringed a patent while their charter was revoked. By operation of law, shareholders, directors and officers are liable for the acts of a corporation while its charter is revoked. Plaintiffs argued that such liability established personal jurisdiction over certain shareholders of the agent defendant corporation. In rejecting this argument, the court held that the jurisdictional inquiry differed from the measure of liability. Defendants' liability arose merely by operation of law. The jurisdictional test seeks to determine whether the acts of one defendant may be imputed to another because of actions in concert. Simply because a shareholder is liable for certain acts does not mean that the acts of the corporation are the acts of a shareholder for purposes of jurisdiction. Presumably, this case may mean that certain partners may not be sued personally for the acts of other partners merely because they are jointly and severally liable for the acts of the other partners under partnership law. Instead, traditional alter ego factors must be examined.

Frequently, a foreign manufacturer establishes a United States subsidiary to market and distribute the manufacturer's goods. An exemplary case is Lemelson v. Van Dorn Plastics Machinery (see endnote 76). The court found that an alter ego relationship existed. The American subsidiary served as a sales office for a Japanese manufacturer. The companies shared several directors and the President of the two companies was the same. When the subsidiary was formed, it was formed precisely for the purpose of selling products for the Japanese parent. The parent corporation spent millions of dollars on advertising and marketing in the United States and the subsidiary sent monthly sales reports to Japan. Although the court did not discuss a number of the other relevant factors, this case provides one example of the kinds of cases where a court will find that an alter ego relationship exists.

Sometimes, a court will apply alter ego rules to prevent fraud or injustice where no alter ego relationship can otherwise be established. In Kinetic Instruments, Inc. v. Lares, (see endnote 77) the defendant allegedly told an officer of the plaintiff that even if the plaintiff won, he "had taken measures to see that [plaintiff] will never get anything." Despite the absence of traditional factors suggesting an alter ego relationship, the court held that the corporate entity should be disregarded to prevent injustice based upon this statement alone.

Turning to the agency theory, the requirements for establishing jurisdiction under this theory are slightly different. Although courts that confuse the two theories often discuss some of the alter ego factors listed above, those considerations are normally irrelevant when trying to establish agency. Like the alter ego theory, states will vary in the requirements to establish personal jurisdiction under an agency theory, but the basic test should remain constant. Jurisdiction under an agency theory is proper where the acts performed by the agent corporation were performed with the knowledge and consent of the foreign corporation and the foreign corporation exercised control over the agent corporation as to those acts (see endnote 78). Like the alter ego theory, discovery may aid the plaintiff in establishing an agency relationship for purposes of the events at issue in the lawsuit.

Again, several examples will help illustrate the kind of relationship that establishes agency in an IP case (see endnote 79). Because agency is analogous to specific jurisdiction, a plaintiff seeking to establish jurisdiction under this theory needs to focus on the events that form the basis for the plaintiff's complaint. Some or all of those events must occur at the urging of the foreign defendant in order to subject that defendant to jurisdiction.

In Kinetic Instruments, Inc. v. Lares, (see endnote 80) the court found that the president and majority shareholder of an agent corporation could be subjected to jurisdiction. The president was involved in the day to day operations of the corporation including the manufacture and sale of the accused product. As alleged in the plaintiff's complaint, the president also had specific knowledge of the patent and directed the corporation to continue to manufacture and sell the accused product. In addition, the president benefited financially from the alleged infringement. The court found that jurisdiction was proper because the infringement occured with the president's knowledge and consent and for his benefit while he exercised control over the corporation in its decision to sell the accused product.

Agency theory has been applied in the copyright context as well. In Pepe (U.K.) Ltd. v. Grupo Pepe Ltda., (see endnote 81) the court held that two foreign corporations were subject to jurisdiction based upon the activities of its sales agent in the state. The sales agent solicited business on behalf of the foreign manufacturer and took orders on the foreign corporation's order forms. This case illustrates how to obtain jurisdiction over a foreign manufacturer when it does not use an employee to market its products. The use of a sales agent under control of a foreign corporation that sells infringing products may be enough to subject the foreign corporation to jurisdiction under an agency theory.

In the trademark context, an interesting application of the agency theory occured in Sears, Roebuck & Co. v. Sears plc. (see endnote 82). There, the court found that an agency relationship existed between a foreign parent corporation and various subsidiaries. Because the case involved trademark infringement, the relevant conduct under consideration was the use of the Sears trademark by the subsidiaries. The foreign parent was found to control the use of the name, Sears, by each of its subsidiaries. Although such control was sufficient to create an agency relationship for purposes of jurisdiction, the court declined to find specific jurisdiction based upon the actions of certain subsidiaries. Those subsidiaries had no connection with the forum state so jurisdiction was denied. In other words, the agent corporations were not subject to jurisdiction so neither was the foreign corporation. Thus, the Sears case illustrates that even if an agency relationship exists as to the transactions in question, the agent must still have minimum contacts with the forum state.

Agency theory may also allow a plaintiff to reach the licensor of an infringing product or trademark. Several courts have held the distributor of infringing products serves as an agent of the licensor, subjecting the licensor to jurisdiction in the state (see endnote 83). Thus, it may not matter that the defendant is no longer actively participating in the infringing activity. A license relationship with an infringer may be enough.

Although agency and alter ego theories are helpful in obtaining jurisdiction over foreign manufacturers of infringing products or corporate officers or shareholders involved in infringement, the requirements of each theory may be difficult to meet in some cases. One should keep in mind that the stream of commerce theory may be used to obtain jurisdiction over a foreign manufacturer potentially based only on a showing that the manufacturer knew his products were bound for the United States. Such a showing may be easier to make than the showing required under agency or alter ego theories. Theories of contributory infringement and inducement of infringement may also allow jurisdiction to be obtained more easily than under an alter ego or agency theory (see endnote 84).

Another theory that a plaintiff seeking to establish personal jurisdiction should consider is the national contacts theory. This theory has fallen into disfavor and has been an unsuccessful theory for plaintiffs recently. It is one possible theory to consider, however, particularly where a defendant is an alien corporation. When Rule 4 of the Federal Rules of Civil Procedure was changed in 1993 the national contacts theory once again became a potentially viable one (see endnote 85). Even without this amendment, a plaintiff may justifiably question the reasoning of courts that have previously rejected this test.

The theory behind the national contacts test is straightforward. Although the point is open to debate, many would argue that limits on state court exercises of jurisdiction are based upon limits on the state's sovereign power (see endnote 86). Thus, in the minimum contacts test, a court is looking for some connection with the forum state that allows that state to regulate the conduct in question. In federal question cases, however, the sovereign that is regulating the conduct is the federal government. Because the sovereign power of the federal government extends throughout the United States, a court may constitutionally exercise personal jurisdiction over any defendant having minimum contacts with the United States who is accused of violating federal law (see endnote 87).

In the 1970's two courts adopted the national contacts theory in patent infringement actions involving alien defendants (see endnote 88). Analysis should be similar, however, whether or not the defendants are aliens. Just as the minimum contacts test is not applied differently to aliens, neither should a national contacts test. The issue concerns sovereign power and the United States certainly has sovereign power over violations of federal law committed by United States citizens. In fact, because a sovereign always has jurisdiction over its own citizens, the United States could theoretically subject any United States citizen to nationwide jurisdiction for patent, trademark, or copyright infringement. Thus, the national contacts theory is a potential argument in every personal jurisdiction case involving federally protected IP rights.

More recent cases, however, almost universally reject the national contacts theory in IP cases (see endnote 89). These courts reason that because Congress has not authorized nationwide service of process in IP cases, the application of a national contacts theory is inappropriate. These courts then resort to the minimum contacts test.

Plaintiffs should ask courts to reexamine the propriety of a national contacts theory for three reasons. First, the reasons offered for rejecting the theory are questionable. Second, the revised Federal Rules of Civil Procedure appear to authorize nationwide service of process in certain instances. Third, a plaintiff may be able to at least obtain jurisdiction in some state by raising the theory.

Initially, the basis for rejecting the theory is unsound. The Supreme Court has twice chosen not to reach the propriety of a national contacts theory (see endnote 90). However, in Omni Capital Intern. v. Rudolf Wolff & Co.,(see endnote 91) the Supreme Court established that the requirements of notice, service of summons under a valid statute or rule, and minimum contacts are separate requirements. The Court found that personal jurisdiction could not be obtained, even if constitutional, where no valid long-arm statute or rule provided for service of summons. This rule makes sense. Due process requirements define how far a sovereign can extend its jurisdiction. Of course, there is no requirement that a particular sovereign give its courts the maximum amount of power available under the constitution (see endnote 92). Thus, a sovereign may choose to have a long-arm statute or rule that is narrower than the constitution would allow. Congress has arguably adopted such a limited approach by relying upon state long-arm statutes in the bulk of federal question cases.

Thus, the service of summons requirement and the minimum contacts requirement serve different purposes. By making sure service of summons is authorized, a court makes sure that it does not overstep the bounds of its jurisdiction established by the legislature. On the other hand, by making sure jurisdiction is authorized under the minimum contacts test, the court makes sure that is does not overstep the bounds of its sovereign authority as required by the Constitution. Because the policies served by these requirements are different, it makes no sense to reject the national contacts test just because nationwide service of process is not authorized in federal question cases. Essentially, a court so reasoning is improperly limiting the constitutional power of the court based upon a decision by the legislature. It is the duty of the courts to define due process limits on their jurisdiction. Within those boundaries, the legislature may choose to grant as much power to its courts to issue service of summons as it so desires.

Statutory provisions for service of summons, then, should have no effect on whether the national contacts test is appropriate as a matter of due process. Due process limits are defined by the constitution and the scope of sovereign power, not by what the legislature chooses to do. The theory behind the national contacts test is not affected by legislative choice.

Although a plaintiff may be able to argue successfully for a national contacts test, he will still have to serve a summons on the defendant pursuant to a valid state long-arm statute. That is what Omni Capital established. As noted above, some states have extended their long-arm statutes to the limits of due process. In those states, the national contacts approach may allow plaintiffs to obtain jurisdiction over defendants that would not be attainable under the minimum contacts test. If the defendant does not have minimum contacts with the particular state, however, the plaintiff is likely to have trouble establishing jurisdiction under a more restrictive state long-arm statute. In those cases, the national contacts test would not be helpful to the plaintiff as jurisdiction would be denied pursuant to the long-arm statute.

Second, the national contacts theory should be applied under the 1993 version of Rule 4 of the Federal Rules of Civil Procedure. That rule authorizes service of summons where a defendant would not be subject to the jurisdiction of any particular state. In the advisory committee notes, it is suggested that the national contacts theory is the appropriate test to determine whether a particular exercise of jurisdiction under the new rule satisfies the requisites of due process (see endnote 93). Even if the cases refusing to apply the national contacts rule are correct, the reasoning of those cases would suggest that application of the national contacts test is appropriate in cases under the new provision of Rule 4.

Finally, a plaintiff that needs to have an alien defendant as a party to a patent infringement suit may be willing to sacrifice his forum of choice, provided that the alien defendant may still be sued in the United States. Where the plaintiff would rather litigate in another forum than forego litigation against the alien defendant, the revised Federal Rule 4 may allow the plaintiff to obtain jurisdiction in some other forum or in the plaintiff's chosen forum. Because the rule allows the plaintiff to serve a summons on a defendant not subject to jurisdiction of any state court, the plaintiff can put the defendant in an awkward position. Either the defendant must take the position that he is subject to the jurisdiction of some other state (which would presumably estop the defendant from challenging jurisdiction in that state), or the defendant must contend that he is not subject to the jurisdiction of any state. If the defendant chooses the later position, then Rule 4 would allow service of summons and the national contacts test might be applied to obtain jurisdiction in the plaintiff's chosen forum. The national contacts test would presumably be applied because this rule authorizes world wide service of process under the circumstances. Rightly or wrongly, the lack of such authorization was the reason that the courts in the above cited cases chose to reject the national contacts theory. Because such authorization has now been provided, the reason for the rejecting the national contacts theory has disappeared in some cases.

Another controversial personal jurisdiction theory is the "effects" test. This test has increased in popularity since the Supreme Court's decision in Calder v. Jones (see endnote 94). In Calder, the Court found jurisdiction proper in a libel case involving an article that appeared in the National Inquirer. The National Enquirer is based in Florida and the libelous article was written, edited, and prepared for publication almost entirely in Florida. In sustaining personal jurisdiction over the defendants in California, Jones's permanent residence, the Court spoke of the targeted nature of defendant's conduct. Jurisdiction was proper because a California resident was the target of the story and the place where harm was suffered. Thus, the "effects" caused in California by defendants' Florida conduct subjected them to jurisdiction. Defendants were "primary participants in an alleged wrongdoing intentionally directed at a California resident, and jurisdiction over them is proper on that basis."

The Court's poor explanation of the basis for its decision has led to widely varying interpretations. Some courts interpret Calder broadly to approve of jurisdiction in the state where the plaintiff resides where the defendant acts intentionally to cause harm to the plaintiff. Other courts interpret Calder more narrowly, requiring some tortious act of the defendant to occur in the state or tortious injury to occur in the state. Only time will tell which interpretation is correct.

One could certainly argue that Calder is limited to its facts, limited to libel cases, or at least limited to intentional torts. Those who read Calder broadly seem to miss the fact that the tortious injury from the libel occurred in California not because Jones lived there, but because the injury from a libel occurs wherever a libel is published. In Keeton v. Hustler Magazine, Inc., (see endnote 95) a case decided along with Calder, the Supreme Court observed that libel causes injury wherever the libel is published. There, the Supreme Court explicitly rejected restricting libel actions to the plaintiff's home forum (see endnote 96). Injury from a libel occurs wherever it is published because a libel plaintiff has a reputational interest everywhere and a libel published where the plaintiff was previously unknown may create a negative reputation, thus harming the plaintiff (see endnote 97). Thus, the Supreme Court's reference to the injury suffered by Jones may simply have referred to the fact that the libel was published and widely circulated in the forum state. Interestingly, the Supreme Court's analysis of where the harm from a libel occurs is consistent with the Federal Circuit's reasoning in Beverly Hills Fan as to where the harm from patent infringement occurs.

A plaintiff seeking to establish jurisdiction in its home state should determine whether courts in that state read Calder broadly or narrowly. If the courts follow a broad reading, then the plaintiff may be able to establish jurisdiction in an IP case using the effects theory. Certainly, some courts and commentators read Calder broadly in the context of IP cases (see endnote 98). Other courts have read Calder more narrowly in IP cases and require some infringing product to have been sold in the state to justify jurisdiction (see endnote 99). Of course, under the cases described above regarding the situs of the tort, no resort to the effects test is necessary. If an infringing product has been sold in the state, then a tort has occurred in the state, subjecting the defendant to jurisdiction there.

If a plaintiff resides in a forum that takes a broad view of the effects test, then the plaintiff has little to establish to obtain jurisdiction. In the patent infringement context, one might only have to establish that the defendant had knowledge of the patent (see endnote 100). Thus, in the trademark or copyright context, showing a defendant's knowledge of the copyright or trademark will likely be sufficient.

One should be careful in citing cases that have read Calder broadly in the IP context. Some of these cases rely upon the now discredited view that infringement occurs where the plaintiff resides because that is where the plaintiff is injured (see endnote 101).

37. World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297-98 (1980).

38. Id.

39. 480 U.S. 102 (1987).

40. 480 U.S. at 112.

41. 30 U.S.P.Q.2d 1001 (Fed. Cir. 1994). Apparently, the presence of an established distribution channel was outcome determinative as the court observed that other cases had rejected jurisdiction under the stream of commerce theory when no established distribution channel existed. Id. at 1007 n. 15. This case also established that the Federal Circuit views certain personal jurisdiction rules as questions of patent law on which the Federal Circuit will establish uniform rules on which the court will establish uniform rules. Id. at 1006. Some patent cases have followed the broad view of the stream of commerce test. Fluke Corp. v. Fine Instruments Corp., 32 U.S.P.Q.2d 1789 (W.D. Wash. 1994) (finding jurisdiction on basis of design for U.S. market, use of distributor and advertising in catalog); Hupp v. Siroflex of America, Inc., 32 U.S.P.Q.2d 1842 (S.D. Tex. 1994) (finding jurisdiction based upon sales to wholesalers with intent that they sell product throughout United States). Other patent cases have adopted a narrow view of the stream of commerce test. G. H. Bass & Co. v. Wakefern Foor Corp., 21 U.S.P.Q.2d 1862 (S.D.N.Y. 1991).

42. 30 U.S.P.Q.2d at 1007.

43. Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors, 209 U.S.P.Q. 633 (D.C. Cir. 1981); Dakota Industries v. Dakota Sportswear, Inc., 20 U.S.P.Q.2d 1450 (8th Cir. 1991).

44. Triple A. Partnership v. MPL Communications Inc., 229 U.S.P.Q. 445 (D. Kan. 1986) (licensing song with knowledge that song will be sold throughout the United States constitutes minimum contacts); but see Classic Weavers Ltd. v. Couristan Inc., 40 U.S.P.Q.2d 1916 (N.d. Ga. 1996) (finding jurisdiction proper where defendant marketed product through distributor in forum state); North American Pyrotec Inc. v. Mol, 18 U.S.P.Q.2d 1718 (E.D. Pa. 1991) (finding jurisdiction proper where defendant marketed product through distributor in forum state).

45. The disagreement as to trademarks is noted in 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 32:41 (1997). Note that one issue to determine is whether a communication constitutes advertising. In Taurus Intl. v. Titan Wheel Intl., 34 U.S.P.Q.2d 1600 (S.D.N.Y. 1995), the court held that the distribution of a quarterly shareholders report did not constitute solicitation intended to derive business or profits or intended to sell goods or services.

46. Heroes Inc. v. Heroes Foundation, 41 U.S.P.Q.2d 1513 (D.D.C. 1996); Hologic Inc. v. Lunar Corp., 36 U.S.P.Q.2d 1182 (D. Mass. 1995) (patent case); Garner v. Sawgrass Mill Lts. Partnership, 35 U.S.P.Q.2d 1396 (D. Minn. 1994) (trademark case); Dave Guardala Mouthpieces Inc. v. Sugal Mouthpieces Inc., 22 U.S.P.Q.2d 1149 (S.D.N.Y. 1991) (trademark case); Sidco Industries Inc. v. Wimar Tahoe Corp., 19 U.S.P.Q.2d 1850 (D. Oregon 1991) (trademark case); Oreck Corp. v. U.S. Floor Systems, Inc. 231 U.S.P.Q. 634 (5th Cir. 1986) (trademark case); Ragold, Inc. v. Ferrero, U.S.A., 209 U.S. P.Q. 835 (N.D. Ill. 1980) (trademark case); see also DeSantis v. Hafner Creations, Inc., 41 U.S.P.Q.2d 1931 (E.D. Va. 1996) (patent case); German Educational Television Network v. Oregon Public Broadcasting Co., 223 U.S.P.Q. 446 (S.D.N.Y. 1983) (trademark case).

47. McDonough v. Fallon McElligott, Inc., 40 U.S.P.Q.2d 1826 (S.D. Cal. 1996) (copyright case); Polaroid Corp. v. Feely, 36 U.S.P.Q.2d 1354 (D. Mass. 1995) (trademark case); Dart International Inc. v. Interactive Target Systems Inc., 34 U.S.P.Q.2d 1653 (D. Col. 1995) (patent case); P.A.T. Co. v. CrimTec Corp., 27 U.S.P.Q.2d 1538 (D. Kan. 1993) (patent case); Ameritec Corp. v. Ameritech Corp., 230 U.S.P.Q. 225 (C.D. Cal. 1986) (trademark case).

48. Dave Guardala Mouthpieces Inc. v. Sugal Mouthpieces Inc., 22 U.S.P.Q.2d 1149 (S.D.N.Y. 1991); Ragold, Inc. v. Ferrero, U.S.A., 209 U.S. P.Q. 835 (N.D. Ill. 1980).

49. McDonough v. Fallon McElligott, Inc., 40 U.S.P.Q.2d 1826 (S.D. Cal. 1996) (copyright case); Polaroid Corp. v. Feely, 36 U.S.P.Q.2d 1354 (D. Mass. 1995) (trademark case); Dart International Inc. v. Interactive Target Systems Inc., 34 U.S.P.Q.2d 1653 (D. Col. 1995) (patent case); Ameritec Corp. v. Ameritech Corp., 230 U.S.P.Q. 225 (C.D. Cal. 1986) (trademark case).

50. Garner v. Sawgrass Mill Lts. Partnership, 35 U.S.P.Q.2d 1396 (D. Minn. 1994); Sidco Industries Inc. v. Wimar Tahoe Corp., 19 U.S.P.Q.2d 1850 (D. Oregon 1991).

51. But see McDonough v. Fallon McElligott, Inc., 40 U.S.P.Q.2d 1826 (S.D. Cal. 1996) (reaching the questionable conclusion that the national distribution of an allegedly infringing advertisement does not constitute minimum contacts). The McDonough court applied a "but for" test to determine whether jurisdiction was proper. Under this test, if a cuase of action would not have arisen but for the defendant's contacts with the forum state, then the cause of action arises out of those contacts. Wilden Pump & Eng. Co. v. Versa-Matic Tool Inc., 20 U.S.P.Q.2d 1788, 1790 (C.D. Cal. 1991). However, this test does not make sense in an IP case. The Wilden Pump court's analysis is right on. "[A] claim for patent infringement arises every time an infringing product is manufactured, used, or sold, even if no sales are made in California. The "but for" test, however, is simply inpplicable to a cause of action such as patent infringement that involves a multiple and not a discrete injury." Id. at 1790.

52. Robert H. Harris Co. Inc. v. Metal Manufacturing Co. Inc., 19 U.S.P.Q.2d 1786 (E.D. Ark. 1991) (patent case); Gor-Vue Corp. v. Hornell Elektroopik AB, 228 U.S.P.Q. 765 (N.D. Ohio 1986) (patent case); Vault Corp. v. Quaid Software Ltd., 228 U.S.P.Q. 139 (5th Cir. 1985) (copyright case); The Land-O-Nod Co. v. Bassett Furniture Industries, Inc., 218 U.S.P.Q. 306 (D. Minn. 1982) (trademark case); Martin Luther King Jr. Center for Social Chage v. American Heritage Products, Inc., 213 U.S.P.Q. 540 (N.D. Ga. 1981) (copyright case); Huchel v. Sybron Corp., 212 U.S.P.Q. 133 (S.D. Tx. 1980) (patent case); Zazu Designs v. L'Oreal, 9 U.S.P.Q.2d 1972 (N.D. Ill. 1988).

53. 35 U.S.C. § 271(a).

54. DeSantis v. Hafner Creations, Inc., 41 U.S.P.Q.2d 1931 (E.D. Va. 1996). Note, however, that the state long-arm statute may still be a problem. In DeSantis, the state long-arm statute allowed jurisdiction over one causing tortious injury in the state only if the defendant derived substantial revenue from the state or regularly solicited business therein. As a result, personal jurisdiction was denied. The Court does suggest, however, that jurisdiction would be constitutional.

55. McDonough v. Fallon McElligott Inc., 40 U.S.P.Q.2d 1826, 1828 (S.D. Cal. 1996); IDS Life Ins. Co. v. SunAmerica, Inc., 958 F. Supp. 1258 (N.D. Ill. 1997).

56. Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996); Hearst Corp. v. Goldberger, 1997 U.S. Dist. LEXIS 2065 (C.D. Cal., Feb. 26, 1997).

57. Bensusan, 937 F. Supp. at 299;

58. Id.

59. Inset Systems, Inc. v. Instruction Set Inc., 937 F. Supp. 161 (D. Conn. 1996); Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328 (E.D. Mo. 1996); Panavision Intern. v. Toeppen, 938 F. Supp. 616 (C.D. Cal. 1996); see also Zippo Mfg. Co. v. Zippo Dot Com Inc., 42 U.S.P.Q.2d 1062 (W.D. Pa.1997); Heroes Inc. v. Heroes Foundation, 41 U.S.P.Q.2d 1513 (D.D.C. 1996).

60. Inset Systems, Inc. v. Instruction Set Inc., 937 F. Supp. 161, 165 (D. Conn. 1996); Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328, 1333 (E.D. Mo. 1996).

61. For an analysis of these theories, generally, and an explanation of the differences between them, see Lea Brilmayer & Kathleen Paisly, Personal Jurisdiction and Substantive Legal Relations: Corporations, Conspiracies, and Agency, 74 Calif. L. Rev. 1 (1986).

62. See supra note 18 and accompanying text.

63. Brilmayer & Paisley, supra note 62 at 12.

64. Brilmayer & Paisley, supra note 62 at 12.

65. E.g., Lemelson v. Van Dorn Plastics Machinery, 25 U.S.P.Q.2d 2054 (D. Nev. 1992).

66. E.g., Kinetic Inst. Inc. v. Lares, 25 U.S.P.Q.2d 1122 (S.D.N.Y. 1992). Note that the converse may also occur--jurisdiction may be asserted over a corporation based upon the acts of an officer or shareholder in the forum state. Pepe (U.K.) Ltd. v. Grupo Pepe Ltda., 24 U.S.P.Q.2d 1354 (S.D. Fla. 1992).

67. E.g., Wesley-Jessen Corp. v. Pilkington Visioncare, Inc., 32 U.S.P.Q.2d 1145 (D.Del. 1993). Although this case uses agency language, its analysis is more analogous to an alter ego theory.

68. E.g., Dillard Dept. Stores, Inc. v. Application Art Laboratories Co., 22 U.S.P.Q.2d 1287 (S.D.N.Y. 1992).

69. Milltronics Inc. v. Hawk America, Inc., 29 U.S.P.Q.2d 1862, 1864 (N.D. Tx. 1993); DP Environmental Services, Inc. v. Bertlesen, 29 U.S.P.Q.2d 2034, 2036 (M.D.N.C. 1993); Unison Industries Ltd. Partnership v. Lucas Industries PLC, 32 U.S.P.Q.2d 1942 (N.D. Ill. 1994) (unpublished); Kinetic Inst. Inc. v. Lares, 25 U.S.P.Q.2d 1122, 1128 (S.D.N.Y. 1992).

70. E.g., Milltronics Inc. v. Hawk America, Inc., 29 U.S.P.Q.2d 1862, 1865 (N.D. Tx. 1993).

71. Kinetic Inst. Inc. v. Lares, 25 U.S.P.Q.2d 1122, 1128 (S.D.N.Y. 1992).

72. Surgical Laser Tech. v. Laser Industries Ltd., 21 U.S.P.Q.2d 1593, 1595 (E.D. Pa. 1991); Polysius Corp. v. Fuller Co., 10 U.S.P.Q.2d 1417 (E.D. Pa. 1989). The constitutionality of such a blanket rule is debatable.

73. E.g., In Re Plastic Bag Litigation, 3 U.S.P.Q.2d 1464, 1467 (D. Mass. 1987).

74. IP cases applying an alter ego theory include: Amhil Enterprises Ltd. v. Wawa Inc., 34 U.S.P.Q.2d 1640 (D. Md. 1994) (no alter ego found); Radionics Inc. v. Elekta Instrument AB, 33 U.S.P.Q.2d 1110 (D. Mass. 1994); Unison Industries Ltd. Partnership v. Lucas Industries PLC, 32 U.S.P.Q.2d 1942 (N.D. Ill., 1994) (no alter ego found); Wesley-Jessen Corp. v. Pilkington Visioncare, Inc., 32 U.S.P.Q.2d 1145 (D.Del. 1993) (alter ego found, although phrased as agency relationship found); Milltronics Inc. v. Hawk America, Inc., 29 U.S.P.Q.2d 1862 (N.D. Tx. 1993) (no alter ego found); DP Environmental Service, Inc. v. Bertlesen, 29 U.S.P.Q.2d 2034 (M.D.N.C. 1993) (no alter ego found); Lemelson v. Van Dorn Plastics Machinery, 25 U.S.P.Q.2d 2054 (D. Nev. 1992) (alter ego found); Loral Fairchild Corp. v. Victor Co. of Japan Ltd., 25 U.S.P.Q.2d 1701 (E.D.N.Y. 1992) (no alter ego found); Pepe (U.K.) Ltd. v. Grupo Pepe Ltda., 24 U.S.P.Q.2d 1354 (S.D. Fla. 1992) (alter ego found); Brandt Consolidated Inc. v. Agrimar Corp., 24 U.S.P.Q.2d 1341 (C.D. Ill. 1992) (alter ego found); Applied Biosystems Inc. v. Cruachem Ltd., 21 U.S.P.Q.2d 1721, 1725 (D. Del. 1991) (no alter ego found); Seltzer Sister Bottling Co., Inc. v. Source Perrier S.A., 19 U.S.P.Q.2d 1898 (N.D. Cal. 1991) (no alter ego found); In re Mahurkar Doubl Lumen Hemodialysis Catheter Patent Litigation, 18 U.S.P.Q.2d 1268 (N.D. Ill. 1990); Rockshots Inc. v. Comstock Cards Inc., 17 U.S.P.Q.2d 1329 (S.D.N.Y. 1990) (alter ego found); Hollister Inc. v. Coloplast A/S, 16 U.S.P.Q.2d 1718 (N.D. Ill. 1990) (no alter ego found); Phillip Morris, Inc. v. The MidWest Tobacco Inc., 14 U.S.P.Q.2d 1652 (E.D. Va. 1989) (alter ego found); Schiefflelin & Co. v. The Jack Co. of Boca Inc., 13 U.S.P.Q.2d 1704 (S.D.N.Y. 1989); In re Plastic Bag Production Patent and Antitrust Litigation, 3 U.S.P.Q.2d 1464 (D. Mass. 1987) (no alter ego found); Gear Inc. v. L.A. Gear California, Inc., 229 U.S.P.Q. 980 (S.D.N.Y. 1986) (no alter ego found); Finance Co. of America v. BankAmerica Corp., 209 U.S.P.Q. 992 (D. Md. 1980) (alter ego found);

75. 29 U.S.P.Q.2d 1862 (N.D. Tx. 1993).

76. 25 U.S.P.Q.2d 2054 (D. Nev. 1992).

77. 25 U.S.P.Q.2d 1122 (S.D.N.Y. 1992).

78. E.g., Kinetic Instruments, Inc. v. Lares, 25 U.S.P.Q.2d 1122, 1126 (S.D.N.Y. 1992).

79. IP cases applying an agency theory include: Psihoyos v. Liberation Inc., 42 U.S.P.Q.2d 1947 (S.D.N.Y. 1997) (agency found--copyright case); Topps Co. v. Gerrit J. Verburg Co., 42 U.S.P.Q.2d 1943 (S.D.N.Y. 1997) (no agency found--trade dress infringement); Firma Melodiya v. ZYX Music GmbH, 35 U.S.P.Q.2d 1562 (S.D.N.Y. 1995) (agency found--copyright and trademarke infringement); Solar Gear Inc. v. Sunglass Hut International, 32 U.S.P.Q.2d 1355 (N.D. Cal. 1994) (agency found--trademark infringement); Endress + Hauser Inc. v. Haw Measurement Systems Pty. Ltd., 26 U.S.P.Q.2d 1394 (S.D. Ind. 1993); Kinetic Instruments, Inc. v. Lares, 25 U.S.P.Q.2d 1122, (S.D.N.Y. 1992) (agency found--patent infringement); Pepe (U.K.) Ltd. v. Grupo Pepe Ltda., 24 U.S.P.Q.2d 1354 (S.D. Fla. 1992) (agency found--copyright and trademark infringement); Dillard Dept. Stores Inc. v. Application Art Laboratories Co., 22 U.S.P.Q.2d 1287 (S.D.N.Y. 1992) (agency found--patent infringement declaratory judgment); Lipton v. The Nature Co., 21 U.S.P.Q.2d 1944, 1947 (S.D.N.Y. 1992) (agency arguably found--copyright infringement); Applied Biosystems Inc. v. Cruachem Ltd., 21 U.S.P.Q.2d 1721 (D. Del. 1991) (agency not found--patent infringement); Sears, Roebuck & Co. v. Sears plc, 18 U.S.P.Q.2d 2007 (D. Del. 1990) (agency found--trademark infringement); Wedding & Assoc. v. General Metal Works, 14 U.S.P.Q.2d 1575 (S.D. Ohio 1989) (agency found--patent infringement); Gerber Garment Technology Inc. v. Lectra Systems, Inc., 9 U.S.P.Q.2d 1809 (N.D. Ga. 1988) (agency found--patent infringement); Triple A Partnership v. MPL Communications, Inc., 229 U.S.P.Q. 445, 447 (D. Kan. 1986) (agency found--copyright infringement); Finance Co. of America v. BankAmerica Corp., 209 U.S.P.Q. 992 (D. Md. 1980) (agency found--trademark infringement).

80. 25 U.S.P.Q.2d 1122 (S.D.N.Y. 1992).

81. 24 U.S.P.Q.2d 1354 (S.D. Fla. 1992).

82. 18 U.S.P.Q.2d 2007 (D. Del. 1990).

83. E.g. Firma Melodiya v. ZYX Music GmbH, 35 U.S.P.Q.2d 1562 (S.D.N.Y. 1995); Lipton v. The Nature Co., 21 U.S.P.Q.2d 1944, 1947 (S.D.N.Y. 1992); Triple A Partnership v. MPL Communications, Inc., 229 U.S.P.Q. 445, 447 (D. Kan. 1986); see also Solar Gear Inc. v. Sunglass Hut International, 32 U.S.P.Q.2d 1355 (N.D. Cal. 1994) (subjecting holding company that allowed wholly owned operating company to use trademark).

84. G. H. Bass & Co. v. Wakefern Foor Corp., 21 U.S.P.Q.2d 1862 (S.D.N.Y. 1991); Levi Strauss & Co. v. Textiles Y Confecciones Europeas, S.A., 222 U.S.P.Q. 971 (S.D.N.Y. 1983); Pony Intl. v. Genfoot America, 223 U.S.P.Q. 1150 (S.D.N.Y. 1983).

85. See supra notes 6-8 and accompanying text.

86. E.g. Max Daetwyler Corp. v. Meyer, 226 U.S.P.Q. 305, 307 (3d. Cir. 1985).

87. Id. at 307-08.

88. Cryomedics Inc. v. Spembly, Ltd., 397 F. Supp. 287, 290 (D. Conn. 1975); Engineered Sports Products v. Brunswick Corp., 362 F. Supp. 722, 728 (D. Utah 1973).

89. Kohler Co. v. Titon Industries, Inc., 41 U.S.P.Q.2d 1681 (E.D. Wis. 1996) (trademark case); Modern Computer Corp. v. Ma, 32 U.S.P.Q.2d 1587 (E.D.N.Y. 1994) (copyright and patent case); Narco Avionics Inc. v. Sportsman's Market, Inc., 24 U.S.P.Q.2d 1283 (E.D. Pa. 1992) (patent case); Applied Biosystems Inc. v. Cruachem Ltd., 21 U.S.P.Q.2d 1721 (D. Del. 1991) (patent case); Seltzer Sister Bottling Co. v. Source Perrier S.A., 19 U.S.P.Q.2d 1898 (N.D. Cal. 1991) (Lanham act claim); Sears, Roebuck & Co. v. Sears plc, 18 U.S.P.Q.2d 2007 (D. Del. 1990) (trademark case); Sears, Roebuck & Co. v. Sears plc, 17 U.S.P.Q.2d 1001 (D. Del. 1990) (trademark case); Gor-Vue Corp. v. Hornell Elektroopik AB, 228 U.S.P.Q. 765 (N.D. Ohio 1986) (patent case); Max Daetwyler Corp. v. Meyer, 226 U.S.P.Q. 305, 308 (3d. Cir. 1985) (patent case); Wells Fargo & Co. v. Wells Fargo Express Co., 194 U.S.P.Q. 10 (9th Cir. 1977) (trademark case).

90. Omni Capital Intern. v. Rudolf Wolff & Co., 108 U.S.P.Q.2d 404, 409 (1987).

91. 108 U.S.P.Q.2d 404 (1987).

92. See DeSantis v. Hafner Creations Inc., 41 U.S.P.Q.2d 1931, 1933 (E.D. Va. 1996).

93. See Fed. R. Civ. P. 4 (Advisory Committee Notes, 1993 Amendments); see also Kohler Co. v. Titon Industries, Inc., 41 U.S.P.Q.2d 1681 (E.D. Wis. 1996) (trademark case).

94. 465 U.S. 783 (1984).

95. 104 S. Ct. 1473 (1984).

96. Id. at 1481.

97. Id. at 1479.

98. Energy Absorption Systems Inc. v. Roadway Safety Service Inc., 30 U.S.P.Q.2d 1325 (N.D. Ill. 1994); VDI Technologies v. Price, 21 U.S.P.Q.2d 1999 (D. N.H. 1991); Mendocino Brewing Co. v. Bridgeport Brewing Co., Inc., 16 U.S.P.Q.2d 1974 (N.D. Cal. 1990); Velcro Group v. Billarant, 10 U.S.P.Q.2d 1115 (D. N.H. 1988); Paolino v. Channel Home Centers, 217 U.S.P.Q. 453 (3d Cir. 1981); Steven Reiss, Applying the Effects Test Theory of Personal Jurisdiction in Patent Infringement Actions, 23 AIPLA Quarterly J. 99 (1995). Other cases are arguably consistent with a broad reading of Calder. Horne v. Adolph Coors, Co., 217 U.S.P.Q. 15 (3d Cir. 1982); Laitram Corp. v. OKI Electric Industry Co., 30 U.S.P.Q.2d 1527 (E.D. La. 1994).

99. Zumbro Inc. v. California Natural Products, 32 U.S.P.Q.2d 1650 (D. Minn. 1994); Amp, Inc. v. Methode Electronics Inc., 27 U.S.P.Q.2d 1888 (M.D. Pa. 1993); Dakota Industries Inc. v. Dakota Sportswear Inc., 20 U.S.P.Q.2d 1450 (8th Cir. 1991); Educational Testing Service v. Katzman, 631 F. Supp. 550 (D. N.J. 1986);

100. E.g., Energy Absorption Systems Inc. v. Roadway Safety Service Inc., 30 U.S.P.Q.2d 1325 (N.D. Ill. 1994).

101. E.g., Energy Absorption Systems Inc. v. Roadway Safety Service Inc., 30 U.S.P.Q.2d 1325 (N.D. Ill. 1994); Horne v. Adolph Coors, Co., 217 U.S.P.Q. 15 (3d Cir. 1982).

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