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In re Google LLC

United States Court of Appeals, Federal Circuit

February 5, 2019

IN RE: GOOGLE LLC, Petitioner

          On 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.

          Neal 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.

          Before Prost, Chief Judge, Newman, Lourie, Dyk, Moore, O'Malley, Reyna, Wallach, Taranto, Chen, Hughes, and Stoll, Circuit Judges.

          ORDER

          PER CURIAM.

         Petitioner 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.

         Upon consideration thereof, It Is Ordered That:

         The petition for panel rehearing is denied.

         The petition for rehearing en banc is denied.

          Reyna, Circuit Judge, with whom Newman and Lourie, Circuit Judges, join, dissenting from the denial of the petition for rehearing en banc.

         The 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 e-commerce.

         The 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).

         (Image Omitted)

         Pet. for Reh'g 10 ...


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