In re Google the Federal Circuit granted Google's petition for a writ of mandamus to dismiss or transfer Super Interconnect Technologies' (SIT) patent infringement suit from the ED Texas, which is perceived as a pro-patent venue.
In TC Heartland decision, the Supreme Court held a patent owner has venue where the defendant resides (state of incorporation) or where the defendant infringes and has "a regular and established place of business."
SIT’s argument for venue was that Google servers in the district constituted "a regular and established place of business." After the venue issue arose, Google removed its servers, but continued to stream video and ads to residents in the ED Texas using third party internet service providers (ISPs) servers.
The district court denied Google's motion to transfer venue, because the servers constituted "a regular and established place of business." However, the Federal Circuit then granted Google's petition for mandamus to resolve venue due to conflicting district court decisions on what activities constituted "a regular and established place of business."
Applying In re Cray the Federal Circuit held venue was improper in ED Texas, because Google lacked employees and an agent in the district, the ISPs were not agents, and server maintenance was ancillary to Google's business. The concurrence said it agreed with the result, but end users should be also considered. Until they are, it appears servers without employee(s) or agent(s) in a district may not be sufficient to establish "a regular and established business."
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