Background
Super Interconnect Technologies LLC filed a patent infringement suit against Google in the Eastern District of Texas (EDTX) — one of the country’s most popular venues for patent plaintiffs. To establish that Google “has a regular and established place of business” in the district as required by 28 U.S.C. § 1400(b), Super Interconnect pointed to Google cache servers — physical servers that Google placed in racks inside the datacenters of local internet service providers (ISPs). These servers stored frequently accessed content close to users, reducing bandwidth costs and improving response times.
Google moved to transfer or dismiss for improper venue, arguing that the leased rack space inside ISP facilities was not a Google “place of business” because Google had no employees or agents there conducting business on its behalf. The district court denied the motion, and Google petitioned the Federal Circuit for a writ of mandamus to correct what it characterized as a clear error of law.
The Court’s Holding
The Federal Circuit granted the writ of mandamus and ordered the Eastern District of Texas to dismiss or transfer the case. Applying the standard it had articulated in In re Cray Inc. (2017), the court held that a “regular and established place of business” under § 1400(b) 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.”
The cache servers in the ISP datacenters did not satisfy this test. The ISPs — not Google — performed physical installation and maintenance of the equipment. Google had no employees physically present in those facilities conducting its core business activities. The court found that the ISPs’ maintenance work was “ancillary” to Google’s business, not a performance of Google’s business itself. That Google’s equipment happened to be physically located in the district was insufficient without a human presence conducting Google’s affairs at that location.
Key Takeaways
- A server, rack, or other piece of equipment in a district does not, by itself, establish venue for patent infringement; a defendant must have employees or agents physically conducting its business there.
- The presence of a defendant’s hardware inside a third-party facility does not transfer the nature of that facility into a “place of business” of the defendant for patent venue purposes.
- This decision closed off a popular theory that patent plaintiffs in the EDTX had used to keep technology companies in the district based on their distributed server infrastructure.
- Companies deploying distributed server infrastructure (CDN nodes, edge servers, caching hardware) across the country should ensure they understand that this infrastructure alone will not create patent venue in every district where equipment is placed.
Why It Matters
Venue in patent cases is a major strategic battleground. Patent plaintiffs have historically preferred the Eastern District of Texas for its plaintiff-friendly docket management and jury verdicts, while technology defendants have sought transfer to forums like the Northern District of California where their businesses and witnesses are actually located. After the Supreme Court’s 2017 ruling in TC Heartland v. Kraft Foods — which narrowed venue to where the defendant is incorporated or has a regular place of business — plaintiffs pivoted to arguing that distributed server infrastructure created venue everywhere.
In re Google cut off that avenue. By requiring a human presence conducting the defendant’s business, the Federal Circuit reinforced TC Heartland’s policy objective of limiting forum shopping in patent cases. Technology companies whose server infrastructure is spread across the country can now confidently argue that rack space and hardware agreements with ISPs or telecom carriers do not pin them to those jurisdictions for patent litigation purposes. The decision was especially significant for the cloud computing, content delivery, and internet infrastructure industries.