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`
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`No. 21-___
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`United States Court of Appeals
`for the Federal Circuit
`
`In re: NETFLIX, INC.,
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`Petitioner.
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`
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`On Petition For A Writ Of Mandamus
`To The United States District Court for the Eastern District of Texas
`In Case No. 2:21-cv-00080
`United States District Judge Rodney Gilstrap
`
`PETITION FOR WRIT OF MANDAMUS
`
`
`Mark A. Lemley
`Nari Ely
`DURIE TANGRI LLP
`217 LEIDESDORFF STREET
`SAN FRANCISCO, CA 94111
`Telephone: 415-362-6666
`Facsimile:
`415-236-6300
`
`Katherine E. McNutt
`DURIE TANGRI LLP
`953 EAST 3RD STREET
`LOS ANGELES, CA 90013
`Telephone: 213-992-4499
`Facsimile:
`415-236-6300
`
`November 1, 2021 Attorneys for Petitioner
` Netflix, Inc.
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`Netflix, Inc. - Ex. 1022, Page 000001
`IPR2021-01298 (Netflix, Inc. v. Avago Technologies International Sales PTE. Limited)
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`Case: 22-110 Document: 2-1 Page: 2 Filed: 11/01/2021
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`FORM 9. Certificate of Interest
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`UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
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`CERTIFICATE OF INTEREST
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`Form 9 (p. 1)
`July 2020
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`Case Number
`Short Case Caption
`Filing Party/Entity
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`Instructions: Complete each section of the form. In answering items 2 and 3, be
`specific as to which represented entities the answers apply; lack of specificity may
`result in non-compliance. Please enter only one item per box; attach
`additional pages as needed and check the relevant box. Counsel must
`immediately file an amended Certificate of Interest if information changes. Fed.
`Cir. R. 47.4(b).
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`I certify the following information and any attached sheets are accurate and
`complete to the best of my knowledge.
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`Date: _________________
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`Signature:
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`Name:
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`21-
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`In re Netflix, Inc.
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`Netflix, Inc.
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`Mark A. Lemley
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`/s/ Mark A. Lemley
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`11/01/2021
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`Netflix, Inc. - Ex. 1022, Page 000002
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`Case: 22-110 Document: 2-1 Page: 3 Filed: 11/01/2021
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`FORM 9. Certificate of Interest
`
`1. Represented
`Entities.
`Fed. Cir. R. 47.4(a)(1).
`Provide the full names of
`all entities represented
`by undersigned counsel in
`this case.
`
`Form 9 (p. 2)
`July 2020
`
`2. Real Party in
`Interest.
`Fed. Cir. R. 47.4(a)(2).
`Provide the full names of
`all real parties in interest
`for the entities. Do not
`list the real parties if
`they are the same as the
`entities.
`
`3. Parent Corporations
`and Stockholders.
`Fed. Cir. R. 47.4(a)(3).
`Provide the full names of
`all parent corporations
`for the entities and all
`publicly held companies
`that own 10% or more
`stock in the entities.
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`☐ None/Not Applicable ☐ None/Not Applicable
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`Additional pages attached
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`4
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`4
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`Netflix, Inc.
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`Netflix, Inc. - Ex. 1022, Page 000003
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`Case: 22-110 Document: 2-1 Page: 4 Filed: 11/01/2021
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`FORM 9. Certificate of Interest
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`Form 9 (p. 3)
`July 2020
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`4. Legal Representatives. List all law firms, partners, and associates that (a)
`appeared for the entities in the originating court or agency or (b) are expected to
`appear in this court for the entities. Do not include those who have already
`entered an appearance in this court. Fed. Cir. R. 47.4(a)(4).
`None/Not Applicable
`Additional pages attached
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`5. Related Cases. Provide the case titles and numbers of any case known to be
`pending in this court or any other court or agency that will directly affect or be
`directly affected by this court’s decision in the pending appeal. Do not include the
`originating case number(s) for this case. Fed. Cir. R. 47.4(a)(5). See also Fed. Cir.
`R. 47.5(b).
`None/Not Applicable
`
`Additional pages attached
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`6. Organizational Victims and Bankruptcy Cases. Provide any information
`required under Fed. R. App. P. 26.1(b) (organizational victims in criminal cases)
`and 26.1(c) (bankruptcy case debtors and trustees). Fed. Cir. R. 47.4(a)(6).
`None/Not Applicable
`Additional pages attached
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`4
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`4
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`4
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`Netflix, Inc. - Ex. 1022, Page 000004
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`Case: 22-110 Document: 2-1 Page: 5 Filed: 11/01/2021
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`CERTIFICATE OF INTEREST FOR NETFLIX, INC. (CONT’D)
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`4. Legal Representatives
`
`Pursuant to Federal Circuit Rule 47.4(a) and Federal Rule of Appellate
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`Procedure 26.1, counsel for Petitioner Netflix, Inc. certifies the following law
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`firms, partners, and associates have appeared on its behalf before the district court:
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`From Sheppard, Mullin, Richter & Hampton LLP: Harper S. Batts,
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`Christopher Scott Ponder.
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`
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`From Keker, Van Nest & Peters LLP: Sharif E. Jacob, Christina Lee,
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`David Justin Rosen, Edward A Bayley, Emily A. Hasselberg, Hinh D. Tran, Julia
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`L. Greenberg, Katie Lynn Joyce, Kristin E Lovin, Leo L. Lam, Matthias Andreas
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`Kamber, Michelle S. Ybarra, Neha Sabharwal, Paven Malhotra, Robert A. Van
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`Nest.
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`From Gillam & Smith LLP: Melissa Richards Smith.
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`Netflix, Inc. - Ex. 1022, Page 000005
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`Case: 22-110 Document: 2-1 Page: 6 Filed: 11/01/2021
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`5. Related Cases
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`Netflix, Inc. (“Netflix”) previously filed a petition for mandamus on
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`September 24, 2021, seeking a stay of substantive proceedings pending resolution
`
`of its motion to dismiss or transfer. This Court denied that petition on October 25,
`
`2021. Order on Pet., In re Netflix, Inc., No. 21-190, 2021 WL 4944826, at *2
`
`(Fed. Cir. Oct. 25, 2021) (TD, SP, TH, per curiam). Netflix and its counsel are
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`aware of the following case pending in this Court or any other court or agency that
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`will directly affect or be directly affected by this Court’s ruling in this case:
`
`• Netflix, Inc. v. CA, Inc., Case No. 3:21-cv-03649 (N.D. Cal. filed
`
`May 14, 2021)
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`
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`Netflix, Inc. - Ex. 1022, Page 000006
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`Case: 22-110 Document: 2-1 Page: 7 Filed: 11/01/2021
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`TABLE OF CONTENTS
`
`Page
`ISSUES PRESENTED .................................................................................... 1
`I.
`JURISDICTIONAL STATEMENT ................................................................ 2
`II.
`III. SUMMARY OF ARGUMENT AND RELIEF SOUGHT ............................. 3
`IV. STATEMENT OF FACTS .............................................................................. 3
`A. Nothing of Any Relevance to This Case Is Located in the Eastern
`District of Texas .................................................................................... 3
`B. One Court Has Already Recognized That a Dispute Between the
`Parties Belongs in the Northern District of California .......................... 6
`The District Court Denied Netflix’s Motion to Dismiss or Transfer
`and Has Sped This Case Towards Trial ................................................ 7
`LEGAL STANDARD ..................................................................................... 9
`V.
`VI. REASONS THE WRIT SHOULD ISSUE...................................................... 9
`A. Netflix’s Right to Dismissal for Improper Venue Is Indisputable ........ 9
`Even if Venue Were Proper, There Is No Question that this Case
`B.
`Should Be Transferred to the Northern District of California, the
`“Center of Gravity” of This Case ........................................................ 19
`C. Netflix Has No Other Adequate Means to Obtain Relief, and
`Mandamus Is Appropriate Under the Circumstances ......................... 33
`VII. CONCLUSION .............................................................................................. 34
`
`C.
`
`i
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`Netflix, Inc. - Ex. 1022, Page 000007
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`Case: 22-110 Document: 2-1 Page: 8 Filed: 11/01/2021
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`TABLE OF AUTHORITIES
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`
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`Page(s)
`
`Cases
`In re Acer Am. Corp.,
`626 F.3d 1252 (Fed. Cir. 2010) .......................................................................... 23
`In re Adobe Inc.,
`823 F. App’x 929, 932 (Fed. Cir. 2020) ............................................................. 31
`Andra Grp., LP v. Victoria’s Secret Stores, L.L.C.,
`6 F.4th 1283 (Fed. Cir. 2021) ............................................................. 3, 13, 18, 19
`In re Apple Inc.,
`979 F.3d 1332 (Fed. Cir. 2020) .............................................................. 22, 24, 32
`B & G Enters., Ltd. v. United States,
`220 F.3d 1318 (Fed. Cir. 2000) .......................................................................... 17
`Cheney v. U.S. Dist. Court for the Dist. of Columbia,
`542 U.S. 367 (2004) .............................................................................................. 9
`In re Cray Inc.,
`871 F.3d 1355 (Fed. Cir. 2017) .............................................................. 10, 11, 12
`In re Dish Network L.L.C.,
`No. 2021-182, 2021 WL 4911981 (Fed. Cir. Oct. 21, 2021) ............................. 32
`Frito-Lay N. Am., Inc. v. Medallion Foods, Inc.,
`867 F. Supp. 2d 859 (E.D. Tex. 2012) ................................................................ 27
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009) .......................................................................... 31
`In re Google LLC,
`949 F.3d 1338 (Fed. Cir. 2020) ...................................................................passim
`Hampton v. Nicholson,
`175 F. App’x 334 (Fed. Cir. 2006) ....................................................................... 9
`In re HP Inc.,
`826 F. App’x 899 (Fed. Cir. 2020) ......................................................... 20, 24, 34
`
`ii
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`Netflix, Inc. - Ex. 1022, Page 000008
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`Case: 22-110 Document: 2-1 Page: 9 Filed: 11/01/2021
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`In re Hulu, LLC,
`No. 2021-142, 2021 WL 3278194 (Fed. Cir. Aug. 2, 2021) .......................passim
`In re Juniper Networks, Inc.,
`14 F.4th 1313, 2021 WL 4343309 (Fed. Cir. 2021) (per curiam) ...............passim
`In re Morgan Stanley,
`417 F. App’x 947 (Fed. Cir. 2011) ..................................................................... 32
`N. Shipping Funds I, LLC v. Icon Capital Corp.,
`921 F. Supp. 2d 94 (S.D.N.Y. 2013) .................................................................. 17
`In re Netflix, Inc.,
`No. 2021-190, 2021 WL 4944826 (Fed. Cir. Oct. 25, 2021) (per
`curiam) .................................................................................................................. 8
`In re Netscout Sys., Inc.,
`No. 2021-173, 2021 WL 4771756 (Fed. Cir. Oct. 13, 2021) ................. 21, 30, 31
`In re Pandora Media, LLC,
`No. 2021-172, 2021 WL 4772805 (Fed. Cir. Oct. 13, 2021) ....................... 28, 29
`In re Radmax, Ltd.,
`720 F.3d 285 (5th Cir. 2013) .............................................................................. 20
`In re Samsung Elecs. Co.,
`2 F.4th 1371 (Fed. Cir. 2021) ............................................................................. 32
`Seven Networks, LLC v. Google LLC,
`315 F. Supp. 3d 933 (E.D. Tex. 2018) .......................................................... 10, 11
`In re SK hynix Inc.,
`835 F. App’x 600, 601 (Fed. Cir. 2021) ............................................................. 32
`SynKloud Techs., LLC v. Adobe, Inc.,
`141 S. Ct. 2469 (2021) ........................................................................................ 31
`TC Heartland LLC v. Kraft Foods Grp. Brands LLC,
`137 S. Ct. 1514 (2017) .................................................................................. 11, 12
`In re Toyota Motor Corp.,
`747 F.3d 1338 (Fed. Cir. 2014) .......................................................................... 24
`
`iii
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`Netflix, Inc. - Ex. 1022, Page 000009
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`Case: 22-110 Document: 2-1 Page: 10 Filed: 11/01/2021
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`In re TS Tech USA Corp.,
`551 F.3d 1315 (Fed. Cir. 2008) ........................................................ 19, 20, 33, 34
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (5th Cir. 2008) (en banc) ............................................ 19, 20, 21, 33
`In re WMS Gaming Inc.,
`564 F. App’x 579 (Fed. Cir. 2014) ............................................................... 24, 32
`Statutes
`28 U.S.C. § 1295 ........................................................................................................ 2
`28 U.S.C. § 1331 ........................................................................................................ 2
`28 U.S.C. § 1338(a) ................................................................................................... 2
`28 U.S.C. § 1400(b) ................................................................................................. 10
`28 U.S.C. § 1651 ........................................................................................................ 2
`Other Authorities
`RESTATEMENT (SECOND) OF AGENCY § 1(1) (Am. Law Inst. 1958) ........................ 17
`Resp. to Pet. for Writ of Mandamus, In re Google LLC, No. 2019-126,
`ECF No. 20-1 (Fed. Cir. Oct. 10, 2019) ............................................................. 12
`
`
`
`iv
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`Netflix, Inc. - Ex. 1022, Page 000010
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`Case: 22-110 Document: 2-1 Page: 11 Filed: 11/01/2021
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`STATEMENT OF RELATED CASES
`
`Netflix, Inc. (“Netflix”) previously filed a petition for mandamus on
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`September 24, 2021, seeking a stay of substantive proceedings pending resolution
`
`of its motion to dismiss or transfer. This Court denied that petition on October 25,
`
`2021. Order on Pet., In re Netflix, Inc., No. 21-190, 2021 WL 4944826, at *2
`
`(Fed. Cir. Oct. 25, 2021) (TD, SP, TH, per curiam). Netflix and its counsel are
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`aware of the following case pending in this Court or any other court or agency that
`
`will directly affect or be directly affected by this Court’s ruling in this case:
`
`• Netflix, Inc. v. CA, Inc., Case No. 3:21-cv-03649 (N.D. Cal. filed
`
`May 14, 2021)
`
`
`
`v
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`Netflix, Inc. - Ex. 1022, Page 000011
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`Case: 22-110 Document: 2-1 Page: 12 Filed: 11/01/2021
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`I.
`
`ISSUES PRESENTED
`1. Should this Court issue a writ of mandamus requiring the district court to
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`comply with well-established law and dismiss this case for lack of proper venue?
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`2. In the alternative, should this Court issue a writ of mandamus requiring
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`the district court to comply with well-established law and transfer this case to the
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`Northern District of California?
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`
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`
`
`1
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`Netflix, Inc. - Ex. 1022, Page 000012
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`Case: 22-110 Document: 2-1 Page: 13 Filed: 11/01/2021
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`II.
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`JURISDICTIONAL STATEMENT
`This Court has jurisdiction over this case because the underlying case is a
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`patent case. See 28 U.S.C. §§ 1295, 1331, 1338(a). This Court has jurisdiction
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`over this petition for writ of mandamus under the All Writs Act, 28 U.S.C. § 1651.
`
`
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`
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`2
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`Netflix, Inc. - Ex. 1022, Page 000013
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`Case: 22-110 Document: 2-1 Page: 14 Filed: 11/01/2021
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`III. SUMMARY OF ARGUMENT AND RELIEF SOUGHT
`The district court’s decision denying Netflix’s motion to dismiss for lack of
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`venue is irreconcilable with In re Google LLC, 949 F.3d 1338 (Fed. Cir. 2020),
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`where this Court held that venue was improper on facts that were, if anything,
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`more favorable to the plaintiff than those here. And its conclusion that
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`independent third parties somehow become Netflix’s agents merely by agreeing to
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`do business with Netflix is irreconcilable with Andra Group, LP v. Victoria’s
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`Secret Stores, L.L.C., 6 F.4th 1283, 1289 (Fed. Cir. 2021).
`
`The district court’s decision denying Netflix’s alternative motion to transfer
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`ignores no fewer than six of this Court’s precedents that directly contradict its
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`ruling, relying instead on outdated decisions from the Eastern District of Texas that
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`do not state the law. This Court’s cases compel transfer. All parties in this case
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`are based in the Northern District of California. So too are the vast majority of the
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`evidence and the witnesses. Indeed, Netflix has no place of business at all and no
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`agents in the Eastern District of Texas.
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`The district court’s refusal to follow the law justifies mandamus.
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`IV. STATEMENT OF FACTS
`A. Nothing of Any Relevance to This Case Is Located in the Eastern
`District of Texas
`All parties to this case are based in the Northern District of California.
`
`Netflix’s principal place of business is in Los Gatos, California. Appx238 ¶ 4. Per
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`3
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`Netflix, Inc. - Ex. 1022, Page 000014
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`Case: 22-110 Document: 2-1 Page: 15 Filed: 11/01/2021
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`the complaint, Plaintiffs CA and Avago are based in San Jose, California.
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`Appx091. Neither Avago nor CA even appears to be in good standing to do
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`business in Texas. See Appx219 ¶ 17, Appx231-236.
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`Likewise, the bulk (if not all) of the relevant evidence in this case is in the
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`Northern District of California. Netflix makes its product development and
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`business management decisions at its Los Gatos, California headquarters, where its
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`management, engineering, and product design and development staff are based.
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`Appx238 ¶ 5. Netflix’s technical documents are located in Los Gatos, and there
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`are twenty-two Netflix employees with potentially relevant information in the
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`Northern District of California. Appx238-240 ¶¶ 6, 8. There are also four
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`inventors and thirteen potential third-party witnesses identified in that district,
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`including patent prosecution counsel, prior artists, and former employees—each
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`outside the subpoena power of Eastern District of Texas. Appx240 ¶ 11, Appx219-
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`221 ¶¶ 18-20. The report and recommendation did not explain how any evidence
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`relevant to the merits of the case was located in the Eastern District of Texas.1
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`Netflix neither owns nor leases real estate in the Eastern District of Texas, and it
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`employs only eight people who reside there. Appx240-242 ¶¶ 13-18. All work
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`remotely from their homes, and none have been identified as having potentially
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`1 The report and recommendation relied on the presence in or near the Eastern
`District of Texas of witnesses such as internet service providers (“ISPs”) relevant
`to the venue decision but not to the merits, e.g., Appx026.
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`4
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`Netflix, Inc. - Ex. 1022, Page 000015
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`Case: 22-110 Document: 2-1 Page: 16 Filed: 11/01/2021
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`relevant information. Appx240-242 ¶¶ 14-18. Netflix neither pays any portion of
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`their rent nor requires them to live in the district. Appx240-242 ¶¶ 14-18.
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`While Netflix owns or leases data centers (“Internet Exchange Points”) in
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`some locations that contain equipment owned by Netflix for the purpose of caching
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`content for delivery, there are no such data centers in the Eastern District of Texas.
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`Appx243 ¶ 33.
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`Netflix also gives server hardware to third-party internet service providers
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`(“ISPs”), independent businesses providing internet access who may install and use
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`that hardware to deliver Netflix content to the ISPs’ customers. Netflix irrevocably
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`transfers ownership, title, and control of that server hardware—referred to as Open
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`Connect Appliance (“OCA”) hardware—to the ISPs. See, e.g., Appx246 § 1; see
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`also Appx245-255. All OCA hardware that Netflix has transferred to ISPs in the
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`Eastern District of Texas includes the irrevocable transfer of both ownership and
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`control. Appx243 ¶ 29, Appx246 § 1, Appx245-255.
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`OCA hardware comes preloaded with Netflix’s software, but Netflix has no
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`rights of any kind—control, oversight, access, or inspection—with respect to the
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`ISPs’ employees working with the servers, the hardware itself, or the physical
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`space in which the ISP chooses to deploy that hardware. Netflix neither has signs
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`on any of the ISPs’ buildings nor lists those buildings as Netflix locations.
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`Appx243 ¶ 31. And though the ISP must cease using the licensed software after
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`5
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`Netflix, Inc. - Ex. 1022, Page 000016
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`Case: 22-110 Document: 2-1 Page: 17 Filed: 11/01/2021
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`expiration of the term specified in its Software License Agreement with Netflix,
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`the ISP may do whatever it wants with the hardware. See, e.g., Appx246 § 1; see
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`also Appx192, Appx245-255.
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`B. One Court Has Already Recognized That a Dispute Between the
`Parties Belongs in the Northern District of California
`On March 13, 2020, Avago and Broadcom Corp. (both Broadcom Inc.
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`subsidiaries) sued Netflix in the Central District of California on nine patents.
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`Appx059 (ECF No. 1), Appx064-065. There, as here, the Broadcom plaintiffs
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`accused Netflix’s streaming technology, Netflix’s container management platform,
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`and third-party container software of infringing the asserted patents. Appx064-
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`077.
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`On July 10, 2020, Judge Selna granted Netflix’s motion to transfer that case,
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`finding that the Northern District of California was the “center of gravity” of the
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`dispute, Appx086, and “that the convenience of its witnesses, the parties’ contacts
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`with the forum, contacts with the forum related to the causes of action, and the
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`difference in litigation costs favor transfer to the Northern District,” Appx090. In
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`finding the Northern District of California the “center of gravity” of the dispute, he
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`also considered that “the allegedly infringing products were designed, developed,
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`and continue to be managed at the Los Gatos headquarters,” where “‘Netflix makes
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`its product development and business management decisions’ and staffs its
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`management, engineering, and product design and development teams,” Appx086
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`6
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`Netflix, Inc. - Ex. 1022, Page 000017
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`Case: 22-110 Document: 2-1 Page: 18 Filed: 11/01/2021
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`(citation omitted).
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`C. The District Court Denied Netflix’s Motion to Dismiss or Transfer
`and Has Sped This Case Towards Trial
`On March 9, 2021, nine months after their prior case had been transferred to
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`the Northern District of California, Plaintiffs filed this case in the Eastern District
`
`of Texas on five new patents, accusing largely the same Netflix technology that
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`was at issue in the pending case in the Northern District of California. See
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`Appx046; compare, e.g., Appx067-068, with Appx098-99. The case was assigned
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`to Judge Gilstrap, who referred pretrial proceedings to Magistrate Judge Payne for
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`report and recommendation. See Appx042 (between ECF Nos. 10-11).
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`On May 17, 2021, Netflix timely filed a motion to dismiss for improper
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`venue or, in the alternative, for transfer to the Northern District of California.
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`Appx043 (ECF No. 26). On September 27, 2021, the magistrate judge issued a
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`report and recommendation recommending that the district court deny Netflix’s
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`motion to dismiss or transfer.
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`The magistrate judge concluded that venue was proper in the Eastern
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`District, finding that the OCAs owned by the ISPs were Netflix’s “places of
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`business.” Appx009. The district court based this conclusion on Netflix’s
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`purported “possession and control” over the OCAs after their transfer to the ISPs,
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`Netflix’s supposed ratification of the OCAs as Netflix’s places of business, and
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`Netflix’s ostensible control over the ISPs who received the OCAs. Appx009-020.
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`7
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`Netflix, Inc. - Ex. 1022, Page 000018
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`Case: 22-110 Document: 2-1 Page: 19 Filed: 11/01/2021
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`The magistrate judge likewise concluded that the Northern District of
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`California was not a more convenient forum. With respect to private interest
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`transfer factors, the magistrate judge concluded that access to sources of proof and
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`the availability of compulsory process weighed slightly against transfer, and found
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`the cost of attendance for willing witnesses neutral, despite the concentration of
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`documents, party witnesses, and third-party witnesses in the Northern District of
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`California. Appx021-032. The report and recommendation determined that court
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`congestion weighed against transfer based on the Texas forum’s faster case
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`schedule (much of which happened while Netflix was awaiting a ruling on its
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`venue motions, despite this Court’s precedent) and speculation about the schedule
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`that would be set in the California forum if the case were transferred. Appx032.
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`On October 5, 2021, Netflix filed objections to the report and recommendation.
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`Appx364-372.
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`On October 25, 2021, this Court denied Netflix’s prior mandamus petition
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`seeking a stay of merits proceedings pending a ruling on the venue motion, noting
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`that the magistrate judge had issued a report and recommendation, and stating its
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`expectation that the district “court will promptly decide the pending motion to
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`dismiss or transfer.” Order, In re Netflix, Inc., No. 2021-190, 2021 WL 4944826,
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`at *2 (Fed. Cir. Oct. 25, 2021) (per curiam); Appx054. On October 25, 2021, the
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`district court summarily adopted the magistrate judge’s report and recommendation
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`8
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`Netflix, Inc. - Ex. 1022, Page 000019
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`Case: 22-110 Document: 2-1 Page: 20 Filed: 11/01/2021
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`in a one-page opinion that contained no analysis. Appx001.
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`While the initial venue and transfer motions were not resolved until
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`October 25, the district court set an aggressive schedule despite this Court’s
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`repeated instruction to resolve venue and transfer issues first. The Markman
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`hearing is scheduled for November 2, 2021, the close of fact discovery for
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`November 29, and trial for April 2022. Appx048 (btw. ECF Nos. 107 and 108),
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`Appx358, Appx360.
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`V. LEGAL STANDARD
`This Court has adopted a three-pronged test for granting a writ of
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`mandamus:
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`(1) the party seeking issuance of the writ must have no other adequate
`means to attain the relief he desires; (2) the petitioner must satisfy the
`burden of showing that his right to issuance of the writ is “clear and
`indisputable”; and (3) the issuing court, in the exercise of its discretion,
`must be satisfied that the writ is appropriate under the circumstances.
`Hampton v. Nicholson, 175 F. App’x 334, 335 (Fed. Cir. 2006) (quoting Cheney v.
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`U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380-81 (2004)).
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`VI. REASONS THE WRIT SHOULD ISSUE
`Netflix seeks a writ of mandamus to correct the district court’s clear abuse of
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`discretion in denying Netflix’s motion seeking dismissal of the case for improper
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`venue or, alternatively, transfer to the Northern District of California.
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`A. Netflix’s Right to Dismissal for Improper Venue Is Indisputable
`Venue is proper for patent infringement suits “where the defendant resides,
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`Case: 22-110 Document: 2-1 Page: 21 Filed: 11/01/2021
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`or where the defendant has committed acts of infringement and has a regular and
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`established place of business.” 28 U.S.C. § 1400(b). For a defendant to have a
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`“regular and established place of business” in a given district, “(1) there must be a
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`physical place in the district; (2) it must be a regular and established place of
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`business; and (3) it must be the place of the defendant.” In re Cray Inc., 871 F.3d
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`1355, 1360 (Fed. Cir. 2017).
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`Netflix is a Delaware corporation with its principal place of business in Los
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`Gatos, California. Netflix does not own or lease any real estate in the Eastern
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`District. This Court concluded that venue was improper in Google even though the
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`district court found that Google leased server rack space in the district. Seven
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`Networks, LLC v. Google LLC, 315 F. Supp. 3d 933, 949 (E.D. Tex. 2018).
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`Likewise, Google exerted more control over its Google Global Cache servers
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`(“GGCs”) and the ISPs who hosted them than Netflix does over the OCAs and
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`ISPs who own them in this case. Id. at 1340-41. The district court nonetheless
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`relied on the same venue allegations here that this Court found deficient in Google:
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`(1) Netflix gives OCAs to ISPs, Appx255; (2) Netflix confirms that the ISPs meet
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`certain network requirements, Appx094-095 ¶ 15; (3) Netflix performs
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`maintenance activities, Appx094-095 ¶ 15; and (4) Netflix contracts with the ISPs
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`to deliver cached content to residents in this district, Appx095 ¶¶ 16-17. The
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`district court’s conclusions that the ISPs’ OCAs are Netflix’s “places of business”
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`Case: 22-110 Document: 2-1 Page: 22 Filed: 11/01/2021
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`and that the ISPs are Netflix’s agents flatly contradict Google. Either error is
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`independently sufficient to establish that venue is improper.
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`1.
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`Third Party Servers Are Not Netflix’s Places of Business
`Under the Venue Statute.
`The district court’s holding that OCAs—computer servers that store and
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`serve Netflix content—are Netflix’s “regular and established places of business”
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`cannot be squared with TC Heartland LLC v. Kraft Foods Group Brands LLC,
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`137 S. Ct. 1514, 1519 (2017), and Cray, 871 F.3d at 1355.
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`A Server Is Not a “Place of Business”
`a.
`In TC Heartland, the Supreme Court rejected the view that venue in a patent
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`infringement action was proper in any district in which the defendant was “doing
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`business.” 137 S. Ct. at 1519-20. Instead, the plaintiff had to show that the
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`defendant had a place of business. In Cray, this Court clarified that the “place of
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`business” must be a “fixed,” “physical, geographical location . . . from which the
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`business of the defendant is carried out.” 871 F.3d at 1362. The word “place”
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`refers to “[a] building or a part of a building set apart for any purpose or quarters of
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`any kind . . . .” Id. (internal quotation marks omitted) (citation omitted) (first
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`alteration in original).
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`A computer server is an object, not a place. Unlike Google, the district court
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`here did not find that Netflix leases the rack space the OCAs occupy, and Netflix
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`does not do so. Compare Seven, 315 F. Supp. at 949, with Appx007-013. The
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`Case: 22-110 Document: 2-1 Page: 23 Filed: 11/01/2021
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`OCAs, unlike Google’s servers, are owned by the ISPs to which they are
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`transferred. Compare id. at 1340, with Appx009-013. The ISP has complete
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`control over where each OCA is placed; it can be placed in a single location, or
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`moved between several locations. Appx306-307 (no requirements regarding rack
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`location); Appx308 (ISP has “full control over the networks that the appliances
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`will serve.”). Google did not hold that objects were places. In finding proper
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`venue based on something other than a “place” in the district, Appx013, the district
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`court abused its discretion and the analysis should end there.
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`b.
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`In Any Event, the OCA Servers Are Not Netflix’s
`“Place of Business”
`But even if OCAs were “places” under TC Heartland and Cray, they would
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`not be Netflix’s places, as they are owned and controlled by the ISPs. Here, the
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`district court concluded otherwise because it determined that Netflix’s reference to
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`OCAs “in its marketing materials is sufficient to ratify the OCAs as Defendant’s
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`place of business.” Appx012. But this is the same argument that failed to establish
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`venue in Google. See Resp. to Pet. for Writ of Mandamus at 6-7, In re Google
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`LLC, No. 2019-126, ECF No. 20-1 (Fed. Cir. Oct. 10, 2019) (pointing to marketing
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`materials where Google stated that “our Edge Network is how we connect with
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`ISPs to get traffic to and from users” and referred to the ISPs hosting GGC servers
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`as “Google locations”).
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`The district court also determined that Netflix “has sufficient control over
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`Case: 22-110 Document: 2-1 Page: 24 Filed: 11/01/2021
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`the OCAs and ratifies them as its places of business” even though the ISPs own
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`them. Appx013. For example, the district court relied on Plaintiffs’ contention
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`that Netflix instructs its ISP partners that they “should not attempt to modify,
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`upgrade, or repair the appliance.” Appx011. But Netflix exerts less control over
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`the OCAs than Google did over the GGCs. Google expressly retained ownership
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`of the GGCs and Google’s contracts with the ISPs went so far as to “forbid the
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`ISPs to ‘access, use, or dispose of’ the GGC servers without Google’s
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`permission . . . .” Google, 949 F.3d at 1341. Neither is true here.
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`Even if it were true that Netflix holds the OCAs out as its places of business
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`or controls the OCAs—which it does not—that would still be insufficient to
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`establish proper venue in the Eastern District because Netflix does not conduct its
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`business there. Id. at 1344-45; Andra, 6 F.4th at 1289 (“[T]he mere fact that a
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`defendant has advertised that it has a place of business or has even set up an office
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`is not sufficient; the defendant must actually engage in business from that
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`location.”) (citation omitted). While the OCAs perform functions that benefit
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`Netflix, Netflix does not own or control them and does not engage in business from
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`the OCAs. ISPs use the OCAs they have been given because they improve the