Argument Preview

Another case being argued in December that attracted an amicus brief is In re Google LLC. In this case, Google seeks a writ of mandamus ordering the district court to dismiss the case for improper venue. According to Google, the case presents the question of whether “a defendant who keeps computer equipment in the facility of a third party in a judicial district has a ‘regular and established place of business’ in that district under the patent venue statute.” Besides Google, the other interested party in this case is the plaintiff-patent owner, Super Interconnect Technologies LLC.

Google argues in its petition that “[a]ll the pertinent factors support mandamus here.” It spends the majority of its brief arguing that “the right to the writ is clear and indisputable” because it does not have a “regular an established place of business” within the Eastern District of Texas.

In particular, Google rejects the district court’s conclusion that venue is appropriate because Internet Service Providers, according to Google, “host a handful of” Google Global Cache servers or “edge nodes” within the district. As explained by Google, GGC servers are off-the-shelf computers hosted in the facilities of a local ISP so that a copy of certain digital content that is popular with the ISP’s subscribers can be temporarily stored or “cached” on that GGC server. According to Google, the district court’s finding of proper venue given the presence of these GGC servers within the district “is flatly inconsistent with the text of the law, [the Federal Circuit’s] precedent, and a growing number of district court decisions.” Google contends that “[t]he phrase ‘place of business’—as a matter of precedent and as a matter of plain text—contains two different requirements”: “real property or . . . the attributes of real property” and “a place where either employees or other agents of the company are present to carry out the business.” Google argues these requirements indicate it has no place of business in the Eastern District of Texas. Google goes on to argue in the alternative or in addition that it has no “regular and established” place of business, and that any place of business is “not Google’s.”

SIT’s response to the petition makes three primary arguments. First, SIT argues Google has adequate relief available on appeal and thus is not entitled to a writ of mandamus, “’a drastic remedy available only in extraordinary circumstances’” when “the petitioner has no other adequate means of relief.” Second, even if Google can show that no other adequate means of relief exist, a writ of mandamus is not appropriate under the circumstances, according to SIT, because “this case does not clearly involve a basic, undecided question of law on a substantial issue.” Finally, SIT argues that Google “has not shown a ‘clear and indisputable’ right” to a writ of mandamus because “the district court’s determination that Google’s Edge Nodes are a ‘regular and established place of business’ finds at least a substantial basis in the language of § 1400(b), the [Federal Circuit’s] decision in Cray, and other legal authority.”

In its reply brief, Google contends that the Federal Circuit “faces an extraordinary confluence of circumstances: a provision of law that has suddenly become crucial to patent litigation after decades of dormancy, and has generated massive uncertainty; an aberrant District Court decision that now governs an outsized percentage of the Nation’s patent docket; and a large number of cases now proceeding in the wrong forum in reliance on that decision.” According to Google, “[t]his unique situation calls for immediate intervention.”

As mentioned, this case attracted an amicus brief. In it, a group of seventeen companies (Acushnet Company, BigCommerce, Inc., ChargePoint, Inc., Check Point Software Technologies, Inc., DISH Network LLC, Fitbit, Inc., Garmin International, Inc., eBay, Inc., HP Inc., L Brands, Inc., Merit Medial Systems, Netflix, Inc., Quantum Corporation, RingCentral, Inc., Twitter, Inc., Walmart, Inc., and Williams-Sonoma, Inc.) make two main arguments in support of Google. First, they argue that the right to a writ of mandamus is clear and indisputable here because the “decision below rests on the notion that a thing. . . occupies space and may therefore be a ‘place’ under the patent venue statute.” And, second, they argue that “mandamus is appropriate because the district court’s decision gives rise to enormous uncertainty and inefficiency, which is intolerable where questions of a court’s power are concerned.”

Notably, the Federal Circuit scheduled the oral argument in this case for the Friday of the second week of December. All other oral arguments in December in other cases will take place next week.