The Federal Circuit used advisory mandamus to hold that servers alone were not enough to establish venue in a patent-infringement suit.
February 15, 2020
In In re Google LLC, the Federal Circuit used mandamus to order that a case be dismissed or transferred due to improper venue. The district court had concluded that Google’s having cache servers (but no employees) within the Eastern District of Texas was enough for venue to be proper in a patent-infringement suit. The Federal Circuit disagreed. And it did so via mandamus. Mandamus is normally reserved for occasions when district courts clearly and obviously err or go well beyond their jurisdiction. Google was not such a case. It was instead an example of what’s often called “advisory” mandamus, where a court of appeals uses the writ to address an unresolved and important issue that could evade appellate review.
The Google litigation
The case involved a patent-infringement suit against Google that was filed in the Eastern District of Texas. The patent venue statute says that these suits can be brought “where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” The Supreme Court has held that, for purposes of patent-infringement suits, a domestic company resides only in its state of incorporation. So venue turned on whether Google has “a regular and established place of business” in the Eastern District.
The plaintiff argued that Google had such a place of business due to the presence of several Google cache servers located in the district. The servers were housed in facilities owned by local Internet service providers. Google cached locally popular content on those servers so that users could access that content more quickly. Users’ requests for that content needed to go only to the local servers, not Google’s central data-storage servers. That shorter physical distance resulted in lower latency and reduced bandwidth costs for Google. Google did not itself physically install or maintain the servers; local employees of the Internet service providers did.
Google moved to dismiss the complaint for improper venue. But the district court denied the motion, holding that the servers alone were enough for Google to have a regular and established place of business in the district. In doing so, the district court relied on its prior decision in Seven Networks, LLC v. Google LLC, which held that venue in a suit against Google was proper for the same reasons.
Google then filed a petition for a writ of mandamus with the Federal Circuit
Advisory mandamus on an unresolved venue issue
The Federal Circuit ultimately granted the petition and ordered that the case be dismissed or transferred. But the propriety of mandamus was not immediately obvious. One of the requirements for mandamus is that the right to the writ be clear and indisputable. That normally requires that the district court commit a plain or obvious error, as mandamus is not supposed to be a substitute for appeal. Indeed, at a recent oral argument, Justice Kagan suggested that mandamus was usually reserved for correcting obvious errors, not for resolving important issues.
But mandamus can also play a role in addressing difficult, unresolved issues. In Schlagenhauf v. Holder, the Supreme Court affirmed the issuance of a writ of mandamus to decide an issue of first impression. And in Mallard v. U.S. District Court, the Court endorsed the use of the writ to decide an issue on which the courts of appeals had split. These and other instances demonstrate the “advisory” use of mandamus, which does not require an obvious error.
The Federal Circuit had denied a petition for a writ of mandamus in the Seven Networks, LLC v. Google LLC litigation mentioned above. In denying that petition, Federal Circuit concluded that the venue issue was not “the kind of broad and fundamental legal questions relevant to § 1400(b) that [the Federal Circuit has] deemed appropriate for mandamus.” It also noted the lack of disagreement among the district courts on this venue issue. The Federal Circuit accordingly concluded that it would allow the issue to percolate.
The intervening months rendered mandamus appropriate. The Federal Circuit noted three developments that changed its view on the propriety of mandamus. First, several district courts had issued conflicting decisions on whether the presence of a server—but no employees—is sufficient for venue to be proper. Second, cases involving this venue issue would likely evade the normal appellate process. (The court didn’t say why exactly the issue would evade review, but I’m guessing the court thought the cases would settle.) And third, the Federal Circuit had allowed this issue to percolate in the district courts, such that the issue was developed and ripe for review. The Federal Circuit also noted the substantial expenses that would be incurred were appellate review delayed:
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.
On the merits of venue, the Federal Circuit held that the lack of an employee or agent in the Eastern District of Texas meant that Google did not have a regular and established place of business in the District. Venue was accordingly improper. For a more in-depth discussion of the venue issue, see Dennis Crouch’s post at Patently-O: Google Servers—Not Enough for Venue.
More on advisory mandamus
For more on advisory mandamus (in the Federal Circuit and elsewhere), two good resources are Paul Gugliuzza’s The New Federal Circuit Mandamus and Adam Steinman’s Reinventing Appellate Jurisdiction.
In re Google LLC, 2020 WL 728165 (Fed. Cir. Feb. 13, 2020), available at the Federal Circuit and Westlaw.