914 F.3d 1377
Fed. Cir.2019Background
- Seven Networks sued Google in the Eastern District of Texas for patent infringement, alleging venue under 35 U.S.C. § 1400(b) because Google’s servers located in third‑party ISP/data‑center facilities constituted a “regular and established place of business.”
- Google filed a petition for mandamus seeking to overturn the district court’s denial of its motion to dismiss for improper venue. The Federal Circuit panel denied the petition; Google sought panel rehearing and rehearing en banc.
- The court denied rehearing and rehearing en banc. A dissent (Judge Reyna, joined by Judges Newman and Lourie) argued the court should have taken the issue en banc and granted mandamus.
- The dissent emphasized recurring and divergent district‑court rulings on whether equipment (servers, routers) in third‑party facilities can establish venue, noting conflicting decisions and numerous subsequent suits relying on the same theory.
- The dissent argued mandamus is appropriate for important, unsettled legal questions affecting judicial administration and uniformity in patent venue law post‑TC Heartland.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether servers/equipment located in third‑party facilities constitute a “regular and established place of business” under 35 U.S.C. § 1400(b) | Servers physically located in the district, controlled/used by Google, are a physical "place" where Google engages in business; venue is proper | Presence of equipment in a third‑party facility without Google employees or traditional office presence does not create a defendant’s "place of business"; venue improper | Mandamus and en banc review denied; the Federal Circuit did not decide the merits of whether such servers satisfy § 1400(b) |
| Whether mandamus is appropriate to resolve the question now | Mandamus unnecessary; ordinary appeal or further district‑court proceedings suffice | Mandamus warranted because the question is important, unsettled, and will generate inconsistent rulings and wasted litigation resources | Mandamus denied; panel and en banc denial. Dissent argued mandamus should issue |
Key Cases Cited
- La Buy v. Howes Leather Co., 352 U.S. 249 (1957) (mandamus can address issues of proper judicial administration)
- Schlagenhauf v. Holder, 379 U.S. 104 (1964) (mandamus may be used to decide basic, undecided legal questions)
- In re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017) (factors for "regular and established place of business" and limits on expansive venue constructions)
- In re BigCommerce, Inc., 890 F.3d 978 (Fed. Cir. 2018) (post‑TC Heartland mandamus to constrain expansive venue theories)
- In re Queen’s Univ. at Kingston, 820 F.3d 1287 (Fed. Cir. 2016) (mandamus appropriate to further supervisory or instructional goals)
- TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017) (narrowing patent‑venue analysis to § 1400(b) statutory text)
- In re Cement Antitrust Litig., 688 F.2d 1297 (9th Cir. 1982) (mandamus as part of appellate supervisory duty)