Case: 21-144 Document: 24 Page: 1 Filed: 08/04/2021
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: GOOGLE LLC,
Petitioner
______________________
2021-144
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On Petition for Writ of Mandamus to the United States
District Court for the Western District of Texas in No. 6:20-
cv-0075-ADA, Judge Alan D. Albright.
______________________
ON PETITION
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Before O’MALLEY, REYNA, and CHEN, Circuit Judges.
REYNA, Circuit Judge.
ORDER
Google LLC petitions for a writ of mandamus directing
the United States District Court for the Western District of
Texas to transfer this action to the United States District
Court for the Northern District of California. EcoFactor,
Inc. opposes the petition.
EcoFactor brought this suit in the Western District of
Texas, Waco Division, alleging that Google’s Nest Learning
Thermostat products infringe EcoFactor’s patents. Google,
which is headquartered in Mountain View, California, but
also has a large office in Austin, Texas, moved to transfer
Case: 21-144 Document: 24 Page: 2 Filed: 08/04/2021
2 IN RE: GOOGLE LLC
the infringement action to the Northern District of Califor-
nia pursuant to 28 U.S.C. § 1404(a).
On April 16, 2021, the district court denied Google’s
motion. The court found that co-pending cases brought by
EcoFactor in the same judicial division involving the same
patents weighed against transfer, Appx10; the Texas forum
was fully open and equipped to safely conduct jury trials,
whereas transfer might cause undue delay because the
California forum was not currently open for trials due to
the COVID-19 pandemic, Appx11; there appeared to be
Google employees working from within the Western Dis-
trict of Texas that had material and relevant information,
including the Head of Central Region Energy Partnerships
for Nest, Appx9; Google had not informed the court that
any third party in California was unwilling to travel to
Texas to testify or could not testify by video, Appx7–9;
Google had not “point[ed] with particularity to any relevant
physical documents,” nor “confirm[ed] the existence of any
physical documents located in the [Northern District of
California],” Appx4; and the Western District of Texas had
a localized interest because “Google has had a substantial
presence in Austin for nearly 14 years,” and “[a]s EcoFactor
notes, Google has leased significant square feet in office
space and currently employs over 1,400 employees in Aus-
tin, with plans to expand its presence in Texas even fur-
ther,” Appx12.
The legal standard for mandamus relief is demanding.
Before a court may issue the writ, a petitioner must estab-
lish, among other things, that the right to relief is “clear
and indisputable.” Cheney v. U.S. Dist. Ct. for D.C., 542
U.S. 367, 381 (2004) (citation and internal quotation marks
omitted). In transfer cases, we ask only whether the dis-
trict court’s transfer ruling was such a “‘clear’ abuse of dis-
cretion” that refusing transfer produced a “‘patently
erroneous result.’” In re TS Tech USA Corp., 551 F.3d
1315, 1319 (Fed. Cir. 2008) (quoting In re Volkswagen of
Am., Inc., 545 F.3d 304, 310 (5th Cir. 2008) (en banc)).
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IN RE: GOOGLE LLC 3
Under Fifth Circuit law, where a decision applies transfer
rules, we must deny mandamus unless it is clear “that the
facts and circumstances are without any basis for a judg-
ment of discretion.” Volkswagen, 545 F.3d at 312 n.7 (cita-
tion and internal quotation marks omitted). Google has not
met that standard here.
To be sure, Google’s mere presence in the Western Dis-
trict of Texas insofar as it is not tethered to the events un-
derlying the litigation is not entitled to weight in analyzing
the local interest factor in this case. See In re Apple Inc.,
979 F.3d 1332, 1344–45 (Fed. Cir. 2020). Nor should mere
allegations of infringement in EcoFactor’s selected forum
dictate which forum has a greater local interest. See In re
Samsung Electronics Co., 2 F.4th 1371 (Fed. Cir. 2021).
Nonetheless, we do not find reconsideration necessary in
this case, where Google has not made a clear and indisput-
able showing that transfer was required.
The district court’s efficiency determinations are not
entirely without basis. Although we may have our doubts
as to whether Western Texas is just as convenient as
Northern California for prospective evidence and wit-
nesses, the district court found that one or more Google em-
ployees in Austin, Texas are potential witnesses, and we
are not prepared on mandamus to disturb those factual
findings. See In re Apple Inc., 818 F. App’x 1001, 1004 (Fed.
Cir. 2020) (“Whether individuals or organizations may
have relevant information and whether a certain forum has
a localized connection to the relevant conduct and activities
in a case are fact-intensive matters often subject to reason-
able dispute.”).
Accordingly,
IT IS ORDERED THAT:
The petition is denied.
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4 IN RE: GOOGLE LLC
FOR THE COURT
August 04, 2021 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
s35