Last week, the U.S. Court of Appeals for the Federal Circuit issued a decision in In re Google LLC, No. 2020-144 (Sept. 18, 2020), denying Google’s petition for a writ of mandamus.
Personalized Media Communications LLC (“PMC”) sued Google in the Eastern District of Texas (“EDTX”) for infringing PMC’s patents related to video streaming. PMC claimed venue in the EDTX was supported by the presence of several Google internet servers located within the district. Google moved to dismiss for improper venue under 28 U.S.C. § 1400(b) contending it does not reside in the EDTX and has no “regular and established place of business” in that district. While Google’s motion in the case at hand was pending, the Federal Circuit, in an unrelated case, dismissed venue arguments identical to those raised by PMC. Specifically, the Federal Circuit held that a “‘regular and established 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.’” In re Google LLC, 949 F.3d 1338, 1345 (Fed. Cir. 2020). In the case at hand, PMC then submitted a supplemental brief to the district court raising a new venue theory. PMC asserted that Google’s relationship with a company located in the EDTX that warehoused, refurbished, and repaired Google products, such as Google cellphones, supported venue there. The district court denied Google’s motion to transfer.
Google petitioned the Federal Circuit for a writ of mandamus requiring the district court to vacate its decision and to dismiss or transfer the case out of the EDTX. The Court explained that “[a] party seeking a writ bears the heavy burden of demonstrating to the court that it has no ‘adequate alternative’ means to obtain the desired relief . . . and that the right to issuance of the writ is clear and indisputable.” While the Court voiced sympathy for Google, noting the district court had not moved quickly on Google’s motion, and acknowledged the viability of Google’s arguments against venue, the Court nevertheless concluded Google had not satisfied the heavy burden a party faces when seeking a writ of mandamus. Rather, the Court held, Google’s right to a writ was not “clear and undisputed” and Google can obtain meaningful review of the district court’s venue ruling after the final judgment is entered in the district court case.