NOTE: This order is nonprecedential.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.

O R D E R

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 resolution of the venue issue at this court and on remand to the 

district court. Personalized Media Communications LLC 

(“PMC”) opposes. 

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2 IN RE: GOOGLE LLC

In March 2019, PMC sued Google in the Eastern District 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 service providers (ISPs) located within the district. In June 

2019, Google moved to dismiss for improper venue, contending that it did not reside in the Eastern District of 

Texas and had no “regular and established place of business” 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-related 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 plaintiff against Google. The court 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.’” 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’ maintenance 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 agreements 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, challenging 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 

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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 alternative” 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 indisputable,” 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 satisfied 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 meaningful 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

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