Case: 20-144 Document: 35 Page: 1 Filed: 09/18/2020
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: GOOGLE LLC,
Petitioner
______________________
2020-144
______________________
On Petition for Writ of Mandamus to the United States
District Court for the Eastern District of Texas in No. 2:19-
cv-00090-JRG, Chief Judge J. Rodney Gilstrap.
______________________
ON PETITION AND MOTION
______________________
Before REYNA, WALLACH, and CHEN, Circuit Judges.
REYNA, Circuit Judge.
ORDER
Google LLC petitions for a writ of mandamus ordering
the United States District Court for the Eastern District of
Texas to vacate and reconsider its decision denying
Google’s motion to dismiss or transfer the case for improper
venue under 28 U.S.C. § 1400(b). Google also asks this
court to stay the district court proceedings pending resolu-
tion of the venue issue at this court and on remand to the
district court. Personalized Media Communications LLC
(“PMC”) opposes.
Case: 20-144 Document: 35 Page: 2 Filed: 09/18/2020
2 IN RE: GOOGLE LLC
In March 2019, PMC sued Google in the Eastern Dis-
trict of Texas, alleging that Google was infringing six of
PMC’s patents related to adaptive video streaming. PMC
initially asserted venue was proper in the Eastern District
of Texas based on the presence of several Google Global
Cache (“GGC”) servers at facilities owned by internet ser-
vice providers (ISPs) located within the district. In June
2019, Google moved to dismiss for improper venue, con-
tending that it did not reside in the Eastern District of
Texas and had no “regular and established place of busi-
ness” in that district. 28 U.S.C. § 1400(b).
On February 13, 2020, while Google’s motion to dismiss
was pending and the parties were conducting venue-re-
lated discovery, this court in In re Google LLC, 949 F.3d
1338 (Fed. Cir. 2020) rejected PMC’s venue argument
premised on the GGC servers asserted by a different plain-
tiff against Google. The court held that a “‘regular and es-
tablished place of business’ requires the regular, physical
presence of an employee or other agent of the defendant
conducting the defendant’s business at the alleged ‘place of
business.’” Id. at 1345. Looking to the Restatement (Third)
of Agency’s definition of agency, the court concluded that
the ISPs were not acting as Google’s agent for purposes of
§ 1400(b). We further concluded that the ISPs’ mainte-
nance of the GGC servers was “merely connected to” and
“ancillary” to Google’s business, id. at 1346–47.
After Google issued, PMC offered in supplemental
briefing a different venue theory based on Google’s agree-
ments with Communications Test Design, Inc. (“CTDI”) to
warehouse, refurbish, repair, and ship Google hardware
products such as Google’s cellphones and speakers from
CTDI’s facility located in Flower Mound, Texas. On July
16, 2020, the district court denied Google’s motion. Google
then filed this petition seeking a writ of mandamus, chal-
lenging the court’s determinations that CTDI is acting as
Google’s agent and also whether CTDI is conducting
Google’s business from its Flower Mound facility. Google
Case: 20-144 Document: 35 Page: 3 Filed: 09/18/2020
IN RE: GOOGLE LLC 3
also asks to stay the proceedings, including the upcoming
trial that is set to begin in October 2020.
A party seeking a writ bears the heavy burden of
demonstrating to the court that it has no “adequate alter-
native” means to obtain the desired relief, Mallard v. U.S.
Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 309 (1989),
and that the right to issuance of the writ is “clear and in-
disputable,” Will v. Calvert Fire Ins., 437 U.S. 655, 666
(1978) (internal quotation marks omitted). And even when
those requirements are met, the court must still be satis-
fied that the issuance of the writ is appropriate under the
circumstances. Cheney v. U.S. Dist. Court for the Dist. of
Columbia, 542 U.S. 367, 381 (2004).
Google raises viable arguments based on the law of
agency and this court’s precedent, and we are concerned
that the district court did not move more quickly to resolve
Google’s motion. Nonetheless, we are not satisfied that,
based on the record before us, Google’s right to a writ is
clear and indisputable. Moreover, Google can obtain mean-
ingful review of the district court’s venue ruling after final
judgment in the case, In re HTC Corp., 889 F.3d 1349, 1353
(Fed. Cir. 2018).
Accordingly,
IT IS ORDERED THAT:
The petition for a writ of mandamus is denied and the
motion to stay proceedings is denied as moot.
FOR THE COURT
September 18, 2020 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
s35