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In re Google LLC

No En Banc Review As to Whether Server Location Can Create Patent Venue

In re Google LLC, __ F.3d __, 2019 WL ___ (Fed. Cir. Feb. 5, 2019) (Per curiam; Reyna (dissenting, with Newman, Lourie)) (E.D. Tex.: Gilstrap) (3 of 5 stars)

Fed Cir denies Google’s petitions for panel rehearing and rehearing en banc. The petitions were filed after the Fed Cir denied (in a nonprecedential order (per curiam (Dyk, Reyna (dissenting), Taranto))) Google’s petition for a mandamus writ directing the district court to dismiss or transfer the case for improper venue. The order had found Google unable to conclusively demonstrate that the district court’s decision not to transfer (which relied in part on the presence of Google servers, and contractual relationships relating thereto within the judicial district) warranted mandamus relief, holding, “[I]t would be more 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.” Mandamus denial op. at 6.

Dissent: Judge Reyna would have granted en banc rehearing. In his view, the Fed Cir’s decision “not to decide en banc the question of whether servers or similar equipment in third-party facilities are a regular and established place of business, such that venue is proper under 35 U.S.C. § 1400(b),” is wrong. Dissent at 1. In his view, the issue is appropriate for mandamus review, and the Fed Cir should not “leave unanswered a critical issue that increasingly affects venue in legal actions affecting e-commerce.” Id.

KEYWORDS: MANDAMUS; MOTION TO DISMISS; MOTION TO TRANSFER; VENUE