On Friday the Federal Circuit issued an order denying a petition for a writ of mandamus in In re Google, a case we have been following because it attracted amicus briefs. In the order, the court denied the petition because, it found, Google did not meet its heavy burden. Moreover, the court indicated that Google may obtain meaningful review after a final judgment is issued in its pending case. Here is a summary of the case and the order.
In this case, Personalized Media Communications LLC (PMC) sued Google in the Eastern District of Texas, and Google moved to dismiss the case for improper venue. The court, in an order authored by Judge Reyna and joined by Judges Wallach and Chen, described the facts of the case in some detail:
[T]his court in In re Google LLC, 949 F.3d 1338 (Fed. Cir. 2020) rejected [Personalized Media Communications LLC (“PMC”)]’s venue argument premised on the [the presence of several Google Global Cache (“GGC”) servers.] . . . We further concluded that the ISPs’ maintenance of the GGC servers was “merely connected to” and “ancillary” to Google’s business. . . . After Google issued, PMC offered in supplemental briefing a different venue theory based on Google’s agreements with Communications Test Design, Inc. (“CTDI”) to warehouse, refurbish, repair, and ship Google hardware products . . . On July 16, 2020, the district court denied Google’s motion. Google then filed this petition seeking a writ of mandamus, challenging the court’s determinations that CTDI is acting as Google’s agent.
In Google’s petition, it argued that this is “another case in which a district court in the Eastern District of Texas has misconstrued 28 U.S.C. § 1400(b), accepted a plaintiff’s strained venue theory, and failed to dismiss or transfer a case in which venue is improper.” The App Association, Acushnet Company, Check Point Software Technologies, Datastax, Fitbit, L Brands, Netflix, Ring Central, Unified Patents, Vizio , and the Computer & Communications Industry Association supported Google’s petition through two amicus briefs.
In addressing the petition, the court first noted the heavy burden placed on a party seeking a writ of mandamus in establishing that it has no “adequate alternative” means of relief. In light of such a high burden, the court stated that it was not satisfied that Google’s right to a writ was clear and indisputable. Thus, it denied Google’s petition for a writ of mandamus and denied as moot Google’s motion to stay proceedings in the district court.
Despite denying the petition, the court acknowledged that “Google raise[d] viable arguments based on the law of agency and this court’s precedent.” The court also stated that it was “concerned that the district court did not move more quickly to resolve Google’s motion.” Nevertheless, it maintained that “Google can obtain meaningful review of the district court’s venue ruling after final judgment in the case.”
This series of “In re Google” cases make two things clear—Google really does not want to be in the Eastern District of Texas, and the patent owners really do want to be there. These opinions directly result from the Supreme Court’s decision in TC Heartland LLC v. Kraft Foods Group Brands LLC that patent law has a unique approach to venue that depends in part upon whether an accused infringer has a “regular and established place of business” within the district in question. The earlier case focused on whether Google itself had a regular and established place of business within the Eastern District. This most recent opinion focused on whether Google employed an agent to create a regular and established pace of business in the Eastern District. It seems likely that this dispute, and perhaps similar ones, will come before the Federal Circuit again given Google’s clear, long-term strategy to avoid patent litigation in the Eastern District.