In In re Google LLC, No. 2019-126 (Fed. Cir. Feb. 13, 2020), the Federal Circuit held that venue was improper in the Eastern District of Texas because Google’s servers did not qualify as a “regular and established place of business.”

Google contracted with internet service providers (“ISPs”) to host Google’s servers within the district. The contracts stated that Google would provide the server equipment, and the ISPs would install and maintain the servers and provide network access. Super Interconnect Technologies LLC (“SIT”) sued Google for patent infringement in the district. The district court denied Google’s motion to dismiss for improper venue under 28 U.S.C. § 1406(a). Google petitioned for mandamus seeking to reverse the venue decision.

The Federal Circuit reversed. It held 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,” and that the ISPs did not qualify.  The court found that the functions of the ISPs, including installing and maintaining the servers, did not make the ISPs agents of Google. As a result, Google did not have a regular and established place of business to make the venue proper. Judge Wallach concurred, but questioned whether Google’s end users in certain circumstances could become Google’s agents by sharing data with Google in furtherance of Google’s business.

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