Case: 20-144 Document: 35 Page: 1 Filed: 09/18/2020
`
`NOTE: This order is nonprecedential.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 resolu-
`tion of the venue issue at this court and on remand to the
`district court. Personalized Media Communications LLC
`(“PMC”) opposes.
`
`
`
`
`
`

`

`Case: 20-144 Document: 35 Page: 2 Filed: 09/18/2020
`
`2
`
`
`
`IN RE: GOOGLE LLC
`
`In March 2019, PMC sued Google in the Eastern Dis-
`
`trict 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 ser-
`vice providers (ISPs) located within the district. In June
`2019, Google moved to dismiss for improper venue, con-
`tending that it did not reside in the Eastern District of
`Texas and had no “regular and established place of busi-
`ness” 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-re-
`lated 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 plain-
`tiff against Google. The court held that a “‘regular and es-
`tablished 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’ mainte-
`nance 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 agree-
`ments 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, chal-
`lenging 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
`
`

`

`Case: 20-144 Document: 35 Page: 3 Filed: 09/18/2020
`
`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 alter-
`native” 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 in-
`disputable,” 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 satis-
`fied 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 mean-
`ingful 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
` Date
`
`s35
`
`/s/ Peter R. Marksteiner
`Peter R. Marksteiner
`Clerk of Court
`
`
`
`
`