Petition for Writ of Mandamus to the United States District
Court for the Eastern District of Texas in No.
2:17-cv-00442-JRG, Judge J. Rodney Gilstrap.
Kumar Katyal, Hogan Lovells U.S. LLP, Washington, DC, filed a
combined petition for panel rehearing and rehearing en banc
for petitioner. Also represented by Colleen Sinzdak; Thomas
Schmidt, New York, NY.
Massimo Ciccarelli, Thompson & Knight LLP, Dallas, TX,
filed a response to the petition for respondent SEVEN
Networks, LLC. Also represented by Natalie Cooley, James
Michael Heinlen, Bruce Steven Sostek.
Prost, Chief Judge, Newman, Lourie, Dyk, Moore, O'Malley,
Reyna, Wallach, Taranto, Chen, Hughes, and Stoll, Circuit
Google LLC filed a combined petition for panel rehearing or
rehearing en banc. A response to the petition was invited by
the court and filed by respondent SEVEN Networks, LLC. The
petition for rehearing was first referred to the panel that
decided the mandamus petition, and thereafter the petition
for rehearing and response were referred to the circuit
judges who are in regular active service. A poll was
requested, taken, and failed.
consideration thereof, It Is Ordered That:
petition for panel rehearing is denied.
petition for rehearing en banc is denied.
Circuit Judge, with whom Newman and Lourie, Circuit Judges,
join, dissenting from the denial of the petition for
rehearing en banc.
court elects not to decide en banc the question of whether
servers or similar equipment in third-party facilities are a
regular and established place of business, such that
venue is proper under 35 U.S.C § 1400(b). The court
bases its decision on grounds that the issue it presents does
not rise to a level that warrants mandamus review. I dissent
because the court's decision causes two adverse results.
First, the court sidesteps the precise purpose of mandamus
relief, thereby weakening our Writ of Mandamus jurisprudence.
Second, we leave unanswered a critical issue that
increasingly affects venue in legal actions involving
question poised before the court is whether Google's
servers (shown below in the black box), which have no
physical interaction with Google employees or customers and
are installed by third-parties in the facilities of
third-party internet service providers ("ISPs")
located in the Eastern District of Texas, constitute a
regular and established place of business under 35 U.S.C.
§ 1400(b) and this court's decision in Cray. In
re Cray Inc., 871 F.3d 1355 (Fed. Cir. 2017).
for Reh'g 10 ...