United States Court of Appeals 

for the Federal Circuit ______________________

IN RE: GOOGLE LLC,

Petitioner

______________________

2019-126

______________________

On Petition for Writ of Mandamus to the United States 

District Court for the Eastern District of Texas in Nos. 

2:18-cv-00462-JRG, 2:18-cv-00463-JRG, Judge J. Rodney 

Gilstrap.

______________________

ON PETITION

______________________

THOMAS SCHMIDT, Hogan Lovells US LLP, New York, 

NY, argued for petitioner. Also represented by NEAL 

KUMAR KATYAL, KEITH O'DOHERTY, Washington, DC.

JEFFREY BRAGALONE, Bragalone Conroy PC, Dallas, 

TX, argued for respondent Super Interconnect Technologies LLC. Also represented by THOMAS WILLIAM KENNEDY,

JR., DANIEL FLETCHER OLEJKO.

CLEMENT ROBERTS, Orrick, Herrington & Sutcliffe 

LLP, San Francisco, CA, for amici curiae Acushnet Company, BigCommerce, Inc., ChargePoint, Inc., Check Point 

Software Technologies, Inc., DISH Network, L.L.C., eBay 

Inc., Fitbit, Inc., Garmin International, Inc., High Tech Inventor's Alliance, HP Inc., L Brands, Inc., Netflix, Inc., 

Quantum Corporation, RingCentral, Inc., Twitter, Inc., 

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2 IN RE: GOOGLE LLC

Walmart, Inc., Williams-Sonoma, Inc. Also represented by 

ABIGAIL COLELLA, New York, NY; ERIC SHUMSKY, Washington, DC.

BRENT P. LORIMER, Workman Nydegger, Salt Lake 

City, UT, for amicus curiae Merit Medical Systems, Inc.

______________________

Before DYK, WALLACH, and TARANTO, Circuit Judges.

Order for the court filed by Circuit Judge DYK.

Concurrence filed by Circuit Judge WALLACH.

DYK, Circuit Judge.

O R D E R

Google LLC (“Google”) petitions for a writ of mandamus ordering the United States District Court for the Eastern District of Texas to dismiss the case for lack of venue. 

See Super Interconnect Techs. LLC v. Google LLC, No. 2:18-

CV-00463-JRG, 2019 U.S. Dist. LEXIS 132005 (E.D. Tex. 

Aug. 7, 2019). We hold that mandamus is warranted and 

order that the case either be dismissed or transferred.

BACKGROUND

Super Interconnect Technologies LLC (“SIT”) sued 

Google for patent infringement in the Eastern District of 

Texas. Under the patent venue statute, 28 U.S.C. 

§ 1400(b), “[a]ny civil action for patent infringement may 

be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of 

business.” SIT filed its suit after the Supreme Court’s decision in TC Heartland LLC v. Kraft Foods Group Brands 

LLC, 137 S. Ct. 1514, 1517 (2017), which held that “a domestic corporation ‘resides’ only in its State of incorporation for purposes of the patent venue statute,” and this 

court’s decision in In re Cray, Inc., 871 F.3d 1355, 1360

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IN RE: GOOGLE LLC 3

(Fed. Cir. 2017), which held that a “regular and established 

place of business” under the patent venue statute must be: 

(1) “a physical place in the district”; (2) “regular and established”; and (3) “the place of the defendant.”

SIT alleged that “venue is proper . . . under 28 U.S.C. 

§ 1400(b) because Google has committed acts of infringement in the District and has a regular and established 

place of business in this District.” Super Interconnect, 2019 

U.S. Dist. LEXIS 132005, at *3. Google’s business includes

providing video and advertising services to residents of the 

Eastern District of Texas through the Internet. SIT’s allegation of venue was based on the presence of several Google 

Global Cache (“GGC”) servers, which function as local 

caches for Google’s data.1

The GGC servers are not hosted within datacenters 

owned by Google. Instead, Google contracts with internet 

service providers (ISPs) within the district to host Google’s

1 Google later withdrew its servers from the district 

but concedes that “Google’s subsequent removal of the 

GGC servers from service in the Eastern District of Texas 

does not impact venue in this case.” Pet. at 6. The regional 

circuits appear to be split on the exact timing for determining venue. See, e.g., Flowers Indus., Inc. v. FTC, 835 F.2d 

775, 776 n.1 (11th Cir. 1987) (holding that “venue must be 

determined based on the facts at the time of filing”); Welch 

Sci. Co. v. Human Eng’g Inst., Inc., 416 F.2d 32, 35 (7th 

Cir. 1969) (holding that venue is proper if the defendant 

had a “regular and established place of business at the time 

the cause of action accrued and the suit is filed within a 

reasonable time thereafter”). We need not decide the correct standard, because the GGC servers were present in the 

district both at the time the cause of action accrued and at 

the time the complaint was filed. For convenience, we refer 

to the facts relating to Google’s servers in the district in the 

present tense throughout this opinion.

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4 IN RE: GOOGLE LLC

GGC servers within the ISP’s datacenter. When a user requests Google’s content, the ISP attempts to route the 

user’s request to a GGC server within its own network 

(within the district) before routing the request to Google’s 

central data storage servers (outside the district). The 

GGC servers cache only a small portion of content that is 

popular with nearby users but can serve that content at 

lower latency—which translates to shorter wait times—

than Google’s central server infrastructure. This performance benefit is in part due to the physical proximity of 

the GGC servers to the ISP’s users. This arrangement allows Google to save on bandwidth costs and improve user 

experience on its various platforms.

At the time of the complaint, Google had entered into 

contracts with two ISPs to host GGC servers owned by 

Google in the Eastern District of Texas: Cable One Inc. 

(“Cable One”) and Suddenlink Communications (“Suddenlink”). The contracts provided that the ISPs would host 

Google’s GGC servers in their data centers. Specifically, 

the GGC servers are installed in the ISP’s server racks, 

which are cabinets that accept standard server components. Each contract states that the ISP must provide

“[r]ack space, power, network interfaces, and IP addresses,” for the GGC servers, and provide “[n]etwork access between the [GGC servers] and [the ISP’s] network 

subscribers.” Supplemental Record, Dkt. 31, Ex. A, at 1; 

id., Ex. B, at 1. The contracts permit the ISPs to select the 

rack space for the GGC servers, but they tightly restrict the 

ISPs’ ability to relocate the servers without Google’s permission once a location is selected. Id., Ex. A, at 2; id., 

Ex. B at 2. The contracts also strictly limit any unauthorized access to the space used by Google’s servers. Id., 

Ex. A, at 6–7; id., Ex. B, at 5. The contracts state that the 

ISPs are required to provide “installation services,” i.e., installing the GGC servers in the server racks. Id., Ex. A, at 

1; id., Ex. B at 1. While the contracts forbid the ISPs to 

“access, use, or dispose of” the GGC servers without 

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IN RE: GOOGLE LLC 5

Google’s permission, id., Ex. A, at 2; id., Ex. B at 2, they 

also require the ISPs to provide “[r]emote assistance services,” which “involve basic maintenance activities” performed on the GGC servers by the ISP’s on-site technician,

if requested by Google, id., Ex. A, at 1, 6; id., Ex. B, at 1, 5. 

It is undisputed that no Google employee performed installation of, performed maintenance on, or physically accessed 

any of the GGC servers hosted by Cable One or Suddenlink.

Google moved to dismiss the complaint for improper 

venue under 28 U.S.C. § 1406(a) and Federal Rule of Civil 

Procedure 12(b)(3). The district court denied Google’s motion and, relying on its previous decision in SEVEN Networks LLC v. Google LLC, 315 F. Supp. 3d 933 (E.D. Tex. 

2018), found that the GGC servers qualified as Google’s

“regular and established place of business” under the test 

articulated in Cray.

Google now petitions for a writ for mandamus directing 

the district court to dismiss the case for lack of venue under 

§ 1400(b). Acushnet and 17 other companies filed an amicus brief in support of Google’s petition. This court heard 

oral argument on December 13, 2019.

DISCUSSION

I

This court “may issue all writs necessary or appropriate in aid of [its] jurisdiction[] and agreeable to the usages 

and principles of law” under the All Writs Act. 28 U.S.C. 

§ 1651(a). The Supreme Court has held that three conditions must be met before a writ may issue: (1) the petitioner 

“[must] have no other adequate means to attain . . . relief,” 

(2) the petitioner must show that the right to mandamus is 

“clear and indisputable,” and (3) the court must be “satisfied that the writ is appropriate under the circumstances.” 

Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 

(2004) (first alteration in original) (internal quotation 

marks and citations omitted).

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6 IN RE: GOOGLE LLC

The Supreme Court has confirmed that the requirements for mandamus are satisfied when the district court’s 

decision involves “basic” and “undecided” legal questions. 

Schlagenhauf v. Holder, 379 U.S. 104, 110 (1964). In such 

situations, a district court’s order may constitute a “clear 

abuse of discretion” for which mandamus relief is the only 

adequate relief. Id. Applying Schlagenhauf, we have 

found mandamus “necessary to address the effect of the Supreme Court’s decision in TC Heartland, which itself was 

yet another [improper-venue] case.” In re BigCommerce, 

Inc., 890 F.3d 978, 981 (Fed. Cir. 2018); see also In re ZTE 

(USA) Inc., 890 F.3d 1008, 1011 (Fed. Cir. 2018); In re Micron Tech., Inc., 875 F.3d 1091, 1095 (Fed. Cir. 2017); Cray, 

871 F.3d at 1359. 

In SEVEN Networks, the same district court found that 

venue was proper under what the district court characterized here as “identical facts.” Super Interconnect, 2019 U.S. 

Dist. LEXIS 132005, at *4. Google also petitioned for mandamus in that case, and this court denied that petition on 

the ground that Google failed to show that the district 

court’s ruling implicated the “special circumstances justifying mandamus review of certain basic, unsettled, recurring legal issues over which there is considerable litigation 

producing disparate results.” In re Google LLC, No. 2018-

152, 2018 U.S. App. LEXIS 31000, at *6 (Fed. Cir. Oct. 29, 

2018) (citation omitted).

Our previous denial of mandamus was based on (1) our 

observation that “it [was] not known if the district court’s 

ruling involves the kind of broad and fundamental legal 

questions relevant to § 1400(b) that we have deemed appropriate for mandamus,” and (2) the lack of “disagreement 

among a large number of district courts.” Id. We concluded 

that “it would be appropriate to allow the issue to percolate 

in the district courts so as to more clearly define the importance, scope, and nature of the issue for us to review.” 

Id. Judge Reyna dissented from our decision, id., at *10 

(Reyna, J., dissenting), and dissented to the court’s denial 

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IN RE: GOOGLE LLC 7

of rehearing en banc, joined by Judge Newman and Judge 

Lourie, In re Google LLC, 914 F.3d 1377, 1378 (Fed. Cir. 

2019) (Reyna, J., dissenting).

Since our decision in Google, three related developments have convinced us that mandamus is appropriate to 

resolve this venue issue. First, the prediction of our dissenting colleagues has proven accurate, and there are now 

a significant number of district court decisions that adopt

conflicting views on the basic legal issues presented in this 

case.2 Second, experience has shown that it is unlikely 

2 In re Google LLC, 914 F.3d 1377, 1380 (Fed. Cir. 

2019) (Reyna, J., dissenting); see, e.g., CUPP Cybersecurity 

LLC v. Symantec Corp., No. 3:18-CV-01554, 2019 U.S. Dist. 

LEXIS 37960, at *7–8 (N.D. Tex. Jan. 16, 2019) (holding 

that the defendant’s servers hosted in an datacenter operated by a third party were not a regular and established 

place of business); CDX Diagnostic, Inc. v. US Endoscopy 

Grp., Inc., No. 13-CV-5669, 2018 U.S. Dist. LEXIS 87999, 

at *7 (S.D.N.Y. May 24, 2018) (holding that the defendant’s 

storage units had “no ‘employee or agent’” conducting business and were therefore not regular and established places 

of business); Peerless Network, Inc. v. Blitz Telecom Consulting, LLC, No. 17-CV-1725, 2018 U.S. Dist. LEXIS 

49628, at *9 (S.D.N.Y. Mar. 26, 2018) (holding that a regular and established place of business “requires some employee or agent of the defendant to be conducting business 

at the location in question”); Tinnus Enters., LLC v. Telebrands Corp., No. 6:17-CV-00170, 2018 U.S. Dist. LEXIS 

79068, at *14 (E.D. Tex. Mar. 9, 2018) (holding that the defendant’s leased shelf space in the district was a regular 

and established place of business where the defendant paid 

“agents to monitor, clean, restock, and affix price signage” 

to the shelf space); Automated Packaging Sys. v. Free-Flow 

Packaging Int’l, Inc., No. 5:14-cv-2022, 2018 U.S. Dist. 

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8 IN RE: GOOGLE LLC

that, as these cases proceed to trial, these issues will be 

preserved and presented to this court through the regular 

appellate process. “[W]hile an appeal will usually provide 

an adequate remedy for a defendant challenging the denial 

of an improper-venue motion, there may be circumstances 

in which it is inadequate.” In re HTC Corp., 889 F.3d 1349, 

1354 (Fed. Cir. 2018). While not alone sufficient to justify 

mandamus, the substantial expense to the parties that 

would result from an erroneous district court decision confirms the inadequacy of appeal in this case. See In re BP 

Lubricants USA, Inc., 637 F.3d 1307, 1313 (Fed. Cir. 2011) 

(“Not all circumstances in which a defendant will be forced 

to undergo the cost of discovery and trial warrant mandamus.”). Finally, the wisdom of our decision to allow the issues to “percolate in the district courts” has been borne out, 

Google, 2018 U.S. App. LEXIS 31000, at *8, as additional 

district court decisions have crystallized and brought clarity to the issues: (1) whether a server rack, a shelf, or analogous space can be a “place of business” and (2) whether a 

“regular and established place of business” requires the

LEXIS 5910, at *27–28 (N.D. Ohio Jan. 12, 2018) (holding 

that the defendant’s equipment that was “moved onto the 

customer’s property, and may be removed by [the defendant] or relocated by the customer with [the defendant]’s 

permission, precludes any finding that this equipment 

could serve as a physical, geographical location” for purposes of establishing venue under § 1400(b)); Pers. Audio, 

LLC v. Google, Inc., 280 F. Supp. 3d 922, 935 (E.D. Tex. 

2017) (holding that Google’s GGC servers were not regular 

and established places of business). See also Rensselaer 

Polytechnic Inst. v. Amazon, No. 1:18-cv-00549, 2019 U.S. 

Dist. LEXIS 136436, at *34, *36 (N.D.N.Y. Aug. 7, 2019)

(noting that “[t]he Federal Circuit has not decided whether 

a natural person must conduct business at the location for 

it to be a ‘place of business’”).

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IN RE: GOOGLE LLC 9

regular presence of an employee or agent of the defendant 

conducting the business.3 The district courts’ decisions on 

these issues are in conflict. This court has not addressed 

this fundamental and recurring issue of patent law. We 

thus conclude that mandamus is an available remedy.

II

Under Cray, there are three general requirements to 

establishing that the defendant has a regular and established place of business: “(1) there must be a physical place 

in the district; (2) it must be a regular and established place 

of business; and (3) it must be the place of the defendant.” 

871 F.3d at 1360. Google’s petition advances arguments 

addressed to the first and second Cray factors. First, it argues that a “place” must have the characteristics of a real 

property or leasehold interest. Second, it argues that a 

“place of business” requires a place where an employee or 

agent of the defendant is conducting the defendant’s business.

The first question is whether the rack space occupied 

by the GGC servers constitutes a “place” under § 1400(b)

as interpreted in Cray. As the court in Cray emphasized, 

“the first requirement [under § 1400(b)] is that there ‘must 

be a physical place in the district.’” 871 F.3d at 1362. A 

“place” merely needs to be a “physical, geographical location in the district from which the business of the defendant is carried out.” Id.

Google’s petition suggests that a court’s inquiry into 

whether the defendant has a physical “place of business” 

should focus on whether the defendant has real property 

ownership or a leasehold interest in real property. We hold 

that a “place” need not have such attributes. In Cray, we 

rejected the notion that a “virtual space” or “electronic 

3 See also Br. of Amicus Curiae Acushnet et al., at 12 

n.3 (collecting cases involving these issues).

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10 IN RE: GOOGLE LLC

communications from one person to another” could constitute a regular and established place of business. 871 F.3d 

at 1362. Here, the GGC servers are physically located in 

the district in a fixed, geographic location. Indeed, Cray

itself recognized that a “place of business” is not restricted 

to real property that the defendant must “own[] or lease,” 

and that the statute could be satisfied by any physical place 

that the defendant could “possess[] or control.” Id. at 1363

(discussing the third Cray factor). For example, a defendant who operates a table at a flea market may have established a place of business; the table serves as a “physical, 

geographical location . . . from which the business of the 

defendant is carried out.” Id. at 1362; see also In re Cordis 

Corp., 769 F.2d 733, 735, 737 (Fed. Cir. 1985) (suggesting 

that defendant’s employees’ homes, which were used to 

store the defendant’s “literature, documents and products,” 

could constitute a “regular and established place of business”). Similarly, leased shelf space or rack space can serve 

as a “place” under the statute, as two district courts have 

found. See Tinnus Enters., LLC v. Telebrands Corp., No. 

6:17-CV-00170, 2018 U.S. Dist. LEXIS 79068, at *14 (E.D. 

Tex. Mar. 9, 2018), report and recommendation adopted, 

2018 U.S. Dist. LEXIS 78342 (E.D. Tex. May 1, 2018) (holding that “premium shelf space” leased by the defendant 

constituted a regular and established place of business); 

Peerless Network, Inc. v. Blitz Telecom Consulting, LLC, 

No. 17-CV-1725, 2018 U.S. Dist. LEXIS 49628, at *8–9 

(S.D.N.Y. Mar. 26, 2018) (holding that shelf space constituted a “place” under the first factor of the Cray test). 

We agree, however, with Google’s alternative argument that under the second Cray factor, a “place of business” generally requires an employee or agent of the 

defendant to be conducting business at that place. This is 

apparent from the service statute for patent cases, now codified at 28 U.S.C. § 1694. That provision originally appeared as the second sentence of a two-sentence statutory 

section whose first sentence is now the patent venue 

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IN RE: GOOGLE LLC 11

statute, 28 U.S.C. § 1400(b). Thus 54 Cong. Ch. 395, 29 

Stat. 695 (1897), provided:

[I]n suits brought for the infringement of letters patent the circuit courts of the United States shall 

have jurisdiction, in law or in equity, in the district 

of which the defendant is an inhabitant, or in any 

district in which the defendant, whether a person, 

partnership, or corporation, shall have committed 

acts of infringement and have a regular and established place of business. If such suit is brought in 

a district of which the defendant is not an inhabitant, but in which such defendant has a regular and 

established place of business, service of process, 

summons, or subpoena upon the defendant may be 

made by service upon the agent or agents engaged 

in conducting such business in the district in which 

the suit is brought.

54 Cong. Ch. 395, 29 Stat. 695 (1897) (emphasis added).4

Thus, the venue and service provisions were not just enacted together but expressly linked, and both have always 

required that the defendant have a “regular and established place of business.” Id. 

What the service statute indicates about that phrase 

must inform the proper interpretation of the same phrase 

in the venue statute. Interpretation of a provision must 

take due account of “neighboring statutory provisions,” see 

United States v. Tinklenberg, 563 U.S. 647, 664 (2011), and 

“we normally presume that the same language in related 

statutes carries a consistent meaning,” United States v. Davis, 139 S. Ct. 2319, 2329 (2019). Here, those principles 

require that the service and venue statutes “be read 

4 The currently codified venue and service statutes 

use “resides” and “resident” in place of “inhabitant.” See 28 

U.S.C. §§ 1400(b), 1694.

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12 IN RE: GOOGLE LLC

together.” Id. at 2330. The service statute plainly assumes

that the defendant will have a “regular and established 

place of business” within the meaning of the venue statute 

only if the defendant also has an “agent . . . engaged in conducting such business.” Likewise, the provision that “service . . . may be made by service upon the agent” and the 

“regular and established” character of the business assumes the regular, physical presence of an agent at the 

place of business. In the absence of a contrary indication, 

these assumptions must govern the venue statute as well. 

There is no contrary indication. Indeed, “[t]o the extent 

any doubt remains about Congress’ intent, the legislative 

history confirms what the plain text strongly suggests.” 

Boumediene v. Bush, 553 U.S. 723, 778 (2008). The Congress that enacted the venue statute stated that the “main 

purpose” of the statute was to “give original jurisdiction to 

the court where a permanent agency transacting the business is located.” 29 Cong. Rec. 1900 (1897) (statement of 

Rep. Lacey) (emphasis added). Furthermore, that Congress explained that only a “permanent agency”—and not 

“[i]solated cases of infringement”—would be enough to establish venue. Id. Congress’ characterization of a “regular 

and established place of business” for venue purposes as a 

“permanent agency” reinforces the applicability to venue of 

the agent requirement of the neighboring service provision.

SIT argues that an amendment to the venue statute in 

the America Invents Act (“AIA”), Pub. L. 112-29, § 18(c), 

suggests that the venue statute has no requirement that 

an employee or agent must be present at the defendant’s 

place of business at all, much less regularly conducting 

that business. The amendment states that for a patent infringement action involving a covered business method patent, “an automated teller machine shall not be deemed to 

be a regular and established place of business” for the purposes of establishing venue under § 1400(b). AIA § 18(c). 

We do not see why this amendment, which makes no 

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IN RE: GOOGLE LLC 13

mention of an employment or agent requirement, should 

alter our analysis.

We conclude 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.”

III

The question then is whether Google had an employee 

or agent with a regular, physical presence at its “place of 

business” and whether that employee or agent was conducting Google’s business. The record is clear that there is 

no Google employee conducting business in the Eastern 

District of Texas. However, there is nonetheless the question of whether the ISPs are acting as Google’s agent.

An agency relationship is a “fiduciary relationship that 

arises when one person (a ‘principal’) manifests assent to 

another person (an ‘agent’) that the agent shall act on the 

principal’s behalf and subject to the principal’s control, and 

the agent manifests assent or otherwise consents to act.” 

Restatement (Third) of Agency § 1.01. The essential elements of agency are (1) the principal’s “right to direct or 

control” the agent’s actions, (2) “the manifestation of consent by [the principal] to [the agent] that the [agent] shall 

act on his behalf,” and (3) the “consent by the [agent] to 

act.” Meyer v. Holley, 537 U.S. 280, 286 (2003).

Google contracted with two ISPs, Cable One and Suddenlink, to host its GGC servers. The contracts stated that,

for each ISP, Google would provide the ISP with GGC 

server equipment, which the ISP would install and host in 

server racks within its datacenter. The contracts contemplated that the ISP would perform three functions.

First, the ISP provides the GGC servers with network 

access, i.e., a connection to the ISP’s customers, as well as 

the public Internet. The ISP provides Google with a service, and Google has no right of interim control over the 

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14 IN RE: GOOGLE LLC

ISP’s provision of network access beyond requiring that the 

ISP maintain network access to the GGC servers and allow 

the GGC servers to use certain ports for inbound and outbound network traffic. In this respect, the ISPs are not 

agents of Google. See Restatement (Third) of Agency § 1.01 

cmt. f(1) (“The power to give interim instructions distinguishes principals in agency relationships from those who 

contract to receive services provided by persons who are 

not agents.”).

Second, the ISP performs installation of the GGC servers. The contracts with the ISPs stated that the ISP was 

responsible for the installation of the GGC servers, including “[c]o-ordination with logistics and shipping personnel; 

inventory of equipment received; [u]npacking equipment; 

[a]ssembling equipment based on information and instructions provided by Google; . . . [c]onnecting equipment to 

power strip(s) and Ethernet cable(s); [and] [p]owering up 

equipment & executing installation scripts configuring IP 

address information.” Supplemental Record, Ex. A at 6; 

id., Ex. B at 5. Although these provisions may be suggestive of an agency relationship, we do not consider the ISPs 

performing these installation functions to be conducting 

Google’s business within the meaning of the statute. The 

installation activity does not constitute the conduct of a 

“regular and established” business, since it is a one-time 

event for each server.

Third, the contracts provide that “Google may from 

time to time request that [the ISP] perform certain services” involving “basic maintenance activities” with respect 

to the GGC servers. Id., Ex. A at 6; id., Ex. B at 5. The 

contracts provided examples of these activities: 

physical switching of a toggle switch; power cycling 

equipment . . . ; remote visual observations and/or 

verbal reports to Google on its specific collocation 

[sic] cabinet(s) for environment status, display 

lights, or terminal display information; labeling 

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IN RE: GOOGLE LLC 15

and dress-up of cabling within cabinet; tightening 

screws, cable ties, or securing cabling to mechanical connections, plug[s]; replacing existing plug-in 

only hardware such as circuit cards with spares or 

upgrades.

Id., Ex. A at 6; id., Ex. B at 5. The ISP’s conduct as to these 

activities is permitted “only with specific and direct stepby-step instructions from Google.” Id., Ex. A at 6; id., Ex. B 

at 5. The ISP is also prohibited from “access[ing], us[ing], 

or dispos[ing] of the [GGC servers], in whole or in part” 

without Google’s prior written consent. Id., Ex. A at 2; see 

also Ex. B at 2.

Although the maintenance provision, like the provision 

on installation, may be suggestive of an agency relationship, SIT has not established that the ISPs performing the

specified maintenance functions are conducting Google’s 

business within the meaning of the statute. The better 

reading of the statute is that the maintenance activities 

cannot, standing alone, be considered the conduct of 

Google’s business. 

Maintaining equipment is meaningfully different 

from—as only ancillary to—the actual producing, storing, 

and furnishing to customers of what the business offers. In 

1897, Congress focused on the latter sorts of activities as 

the conduct of business. See 29 Cong. Rec. 1900 (1897)

(statement of Rep. Lacey) (discussing venue in the context 

of agents performing traditional business functions, such 

as manufacturing, sales, or direct customer services); id. at 

1902 (discussing similarities to a law conferring “jurisdiction” to sue agents of an insurance company). There is no 

suggestion in the legislative history that maintenance 

functions that existed at the time, such as the maintenance 

of railways or telegraph lines, constituted “conducting [the 

defendant’s] business” within the meaning of the statute. 

See id. at 1900–02.

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16 IN RE: GOOGLE LLC

We reach our conclusion bearing in mind that, as we 

noted in Cray, the Supreme Court has cautioned against a 

broad reading of the venue statute. 871 F.3d at 1361; Stonite Prods. Co. v. Melvin Lloyd Co., 315 U.S. 561, 566 (1942)

(interpreting the venue statute as “a restrictive measure”); 

Schnell v. Peter Eckrich & Sons, Inc., 365 U.S. 260, 264

(1961) (“The requirement of venue is specific and unambiguous; it is not one of those vague principles which, in the 

interest of some overriding policy, is to be given a liberal 

construction.” (quoting Olberding v. Ill. Cent. R. Co., 346 

U.S. 338, 340 (1953)) (internal quotation marks omitted)). 

We also bear in mind the importance of relatively clear 

rules, where the statutory text allows, so as to minimize 

expenditure of resources on threshold, non-merits issues, 

of which venue is one. See Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., 137 S. Ct. 

1312, 1321 (2017); Hertz Corp. v. Friend, 559 U.S. 77, 94–

95 (2010); United States v. Sisson, 399 U.S. 267, 307 (1970). 

Those principles, and the clear intent of Congress in enacting the statute to restrict venue to where the defendant resides or is conducting business at a regular and established 

place of business, with agents there regularly conducting 

that business, lead us to our conclusion. The venue statute 

should be read to exclude agents’ activities, such as maintenance, that are merely connected to, but do not themselves 

constitute, the defendant’s conduct of business in the sense 

of production, storage, transport, and exchange of goods or 

services. 

If there is dissatisfaction with the resolution we reach,

“[t]he remedy for any dissatisfaction with the results in 

particular cases lies with Congress and not with [the 

courts]. Congress may amend the statute; we may not.” 

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 576 

(1982); see also BigCommerce, Inc., 890 F.3d at 985 (“We 

cannot ignore the requirements of the statute merely because different requirements may be more suitable for a 

Case: 19-126 Document: 36 Page: 16 Filed: 02/13/2020
IN RE: GOOGLE LLC 17

more modern business environment. Such policy-based arguments are best directed to Congress.”).

We conclude that the Eastern District of Texas was not 

a proper venue because Google lacked a “regular and established place of business” within the district since it has no 

employee or agent regularly conducting its business at its 

alleged “place of business” within the district.

IV

To be clear, we do not hold today that a “regular and 

established place of business” will always require the regular presence of a human agent, that is, whether a machine 

could be an “agent.” Such a theory would require recognition that service could be made on a machine pursuant to 

28 U.S.C. § 1694. Nor do we decide what might be inferred 

in this respect from Congress’ amendment to the venue 

statute in the AIA concerning automated teller machines. 

See AIA § 18(c).

IT IS ORDERED THAT:

The petition is granted, and the district court is directed to dismiss or transfer the case as appropriate under 

28 U.S.C. § 1406(a).

 FOR THE COURT

 February 13, 2020 /s/ Peter R. Marksteiner

 Date Peter R. Marksteiner

 Clerk of Court

 

Case: 19-126 Document: 36 Page: 17 Filed: 02/13/2020
United States Court of Appeals 

for the Federal Circuit ______________________

IN RE: GOOGLE LLC,

Petitioner

______________________

2019-126

______________________

On Petition for Writ of Mandamus to the United States 

District Court for the Eastern District of Texas in Nos. 

2:18-cv-00462-JRG, 2:18-cv-00463-JRG, Judge J. Rodney 

Gilstrap.

______________________

WALLACH, Circuit Judge, joining and concurring.

I join with the majority’s order, but I write separately 

to raise questions about Google’s business model. During 

oral argument, Google did not answer, when asked, the 

question of what its main source of business is in the Eastern District of Texas. Google simply explained that it does 

not “actively do[] anything. In other words, there’s no evidence of any employee or agent . . . being present in the district.” Oral Arg. at 51:55–52:15, http://

oralarguments.cafc.uscourts.gov/default.aspx?fl=2019-

126.mp3. 

When asked again, “what do you do in the Eastern District?,” Google responded that “what Google does in the District will depend on what the subject of that verb is,” and 

“when you look at the service statute the subject of that 

verb has to be ‘employees’ or ‘agents’ in the District.” Id. at 

52:30–52:53. Finally, Google was asked “when you gather 

information, from customers, which is part of your 

Case: 19-126 Document: 36 Page: 18 Filed: 02/13/2020
2 IN RE: GOOGLE LLC

business, you agree. How does that get passed back to 

Google? It goes through the server?” Id. at 58:59–59:10. 

Google’s counsel responded stating: “I am not aware. 

There’s nothing in the record that I’m aware of on that 

point, your Honor.” Id. at 59:11–59:14. 

Given the absence from the record of information sufficient to understand Google’s business model, the question 

remains for the District Courts to determine whether 

Google’s end users become agents of Google in furtherance 

of its business by virtue of voluntarily or involuntarily 

sharing information generated on Google’s servers. If, for 

example, by entering searches and selecting results a 

Google consumer is continuously providing data which 

Google monetizes as the core aspect of its business model, 

it may be that under the analysis in which I today join, 

Google is indeed doing business at the computer of each of 

its users/customers. Because this is a question I believe 

should be entertained by District Courts, I concur. 

Case: 19-126 Document: 36 Page: 19 Filed: 02/13/2020