N OTE : This order is nonprecedential

. 

# United States **Court of Appeals** 
**for the Federal Circuit**

______________________

In re : GOOGLE LLC,

Petitioner

______________________

2020

- 144

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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

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Before R EYNA

, W ALLACH

, and C HEN

, Circuit Judges

.

R EYNA

, 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 moti on to dismiss or transfer the case for improper venue under 28 U.S.C. § 1400(b). Google also asks thiscourt to stay the district court proceedings pending resolution of the venue issue at this court and on remand to the

district court. Personalized Medi a Communications LLC (“PMC”) opposes. Case: 20-144 Document: 35 Page: 1 Filed: 09/18/2020IN RE : GOOGLE LLC 2

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 GlobalCache (“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 n ot 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 disc overy, this court in In re Google LLC , 949 F.3d 1338 (Fed. Cir. 2020) rejected PMC’s venue argumentpremised on the GGC servers asserted by a different plaintiff against Google. The court held that a “‘regular and established place of business’ requires t he 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 th at 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 supplementalbriefing 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 fa cility 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

, challeng ing the court’s determination s that CTDI is acting as Google’s agent and also whether CTDI is conducting Google’s business from its Flower Mound facility . Google Case: 20-144 Document: 35 Page: 2 Filed: 09/18/2020IN 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 cou rt 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

Col umbia , 542 U.S. 367, 381 (2004).

Google raises viable argument s 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 th at

, 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. 201 8).

Accordingly,

I T I S O RDERED T HAT :

The petition for a writ of mandamus is denied and the motion to stay proceedings is denied as moot.

F OR THE C OURT

September 18 , 2020 /s/ Peter R. Marksteiner

Date Peter R. Marksteiner

Clerk of Court

s35 Case: 20-144 Document: 35 Page: 3 Filed: 09/18/2020