The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
SUPER INTERCONNECT §
TECHNOLOGIES LLC, §
§ CIVIL ACTION NO. 2:18-CV-00463-JRG
Plaintiff, § (MEMBER CASE)
§
v. §
§ CIVIL ACTION NO. 2:18-CV-00462-JRG
GOOGLE LLC, § (LEAD CASE)
§
Defendant. §
MEMORANDUM OPINION AND ORDER
On November 2, 2018, Plaintiff Super Interconnect Technologies, LLC (“SIT”) sued
Defendant Google, LLC (“Google”) for patent infringement in this District. (Dkt. No. 1.)1 Google
moves to dismiss the complaint for improper venue under Federal Rule of Civil Procedure 12(b)(3)
and 28 U.S.C. § 1406 (the “Motion”). (Dkt. No. 13.) Having considered the Motion, briefing, and
relevant authorities, the Court DENIES the Motion for the reasons discussed herein.
“Any civil action for patent infringement may be brought in any judicial district where the
defendant resides, or where the defendant has committed acts of infringement and has a regular
and established place of business.” 28 U.S.C. § 1400(b). SIT alleges that venue is proper under
the second prong of § 1400(b):
5. Venue is proper in this judicial district under 28 U.S.C. § 1400(b) because
Google has committed acts of infringement in the District and has a regular and
established place of business in this District. On information and belief, multiple
ISPs host Google Global Cache servers in this District, which cache Google’s
products and deliver them to residents of this District. These Google Global Cache
servers cache content that includes video advertising, apps, and digital content from
the Google Play store, among other things. Google generates revenue by providing
1 Unless otherwise noted, all docket citations are to Super Interconnect Technologies, LLC v.
Google, LLC, No. 2:18-cv-00463 (E.D. Tex.).
these services to residents of this District. Both the server itself and the place of
the Google Global Cache server, independently and together, constitute a “physical
place” and a “regular and established place of business” of Google. The Federal
Circuit very recently denied mandamus to Google where it challenged this Court’s
ruling that venue was proper over it under 28 U.S.C. § 1400(b). See In re Google
LLC, No. 2018-152, 2018 WL 5536478 (Fed. Cir. Oct. 29, 2018).
(Dkt. No. 1 ¶ 5.)
Google argues that its Google Global Cache (“GGC”) servers do not qualify as a “regular
and established place of business” under the Federal Circuit’s three-part test in In re Cray, 871
F.3d 1355, 1360 (Fed. Cir. 2017). (Dkt. No. 13 at 6–10.) Google acknowledges that this Court
previously found venue under identical facts in SEVEN Networks, LLC v. Google LLC, 315 F.
Supp. 3d 933 (E.D. Tex. 2018). (Id. at 1.) Google does not dispute any of these underlying facts,
but instead urges the same legal arguments that this Court denied in SEVEN. (Id. at 4 (noting that
the facts before the Court in SEVEN have remained unchanged and are still undisputed).) The
Court sees no reason to depart from its prior decision and finds that venue in this case is proper for
the same reasons outlined in SEVEN. Accordingly, Google’s Motion to Dismiss for Improper
Venue Under Rule 12(b)(3) and 28 U.S.C. § 1406 (Dkt. No. 13) is denied.2
In addressing Google’s Motion, the Court believes it appropriate to briefly discuss certain
aspects of its holding in SEVEN, particularly its future implications, as raised in Judge Reyna’s
dissent in In re Google, No. 2018-152, 2018 WL 5536478 (Oct. 29, 2018). His dissent opines that
2 Google explains that in Personal Audio, LLC v. Google, Inc., 280 F. Supp. 3d 922, 934 (E.D.
Tex. 2017), Judge Clark held that Google’s GGC servers are not a “regular and established place
of business” under § 1400(b). (Dkt. No. 13 at 1–2.) Google argues that “[a]fter this Court’s
decision in SEVEN and the Federal Circuit’s subsequent mandamus decision, the Northern District
of Texas noted the conflict in this District between SEVEN and Personal Audio and agreed with
Judge Clark.” (Id. at 2 (citing CUPP Cybersecurity, LLC, v. Symantec Corp., No. 3:18-cv-01554,
Dkt. No. 53 at 6 (N.D. Tex. Dec. 21, 2018).) The Court disagrees with the legal analysis in CUPP
for the same reasons it declined to follow Personal Audio in SEVEN. See SEVEN, 315 F. Supp.3d
at 950–54, 956, 965–66.
the Court’s “current reading of § 1400(b) suggests that merely owning and controlling computer
hardware (i.e., servers) that is involved in some company business is sufficient” to confer venue.
Google, 2018 WL 5536478, at *5. He also read this Court’s decision as implying that “a company
could potentially become subject to venue in any judicial district in which a physical object
belonging to the company was located.” Id. at *6.
By its holding in SEVEN, the Court neither intends nor approves the view that venue is
proper everywhere. As the Federal Circuit noted in Cray and as this Court reiterated in SEVEN,
the venue analysis under § 1400(b) must hew closely to the language of the statute. Cray, 871
F.3d at 1362; SEVEN, 315 F. Supp. 3d at 939. The Federal Circuit also explained that whether
venue is proper will depend on the unique facts of each case, in which “no precise rule has been
laid down.” Cray, 871 F. 3d at 1362. In SEVEN, the Court’s venue analysis was grounded largely
on the fact that (1) Google’s business is delivering online content to users, and (2) the GGC servers
are a part of Google’s three-tiered network that conducts this very activity. SEVEN, 315 F. Supp.
3d at 947. (See Dkt. No. 13-6 (Declaration of Keith McCallion on behalf of Google).) That is, it
is the specific nature of Google’s business and the particular facts of this case that lead the Court
to conclude that the GGC servers are a “regular and established place of business” of Google. By
holding such, the Court does not intend that venue is proper in any judicial district where a
defendant owns, controls, or otherwise has a connection to a piece of property, real or personal,
that is related to the defendant’s business. Rather, the specific and fact-based nature, extent, and
type of business will inform whether a particular place in a district qualifies as a “regular and
established place of business” of the defendant. See Cray, 871 F. 3d at 1364 (“A further
consideration for this requirement might be the nature and activity of the alleged place of business
of the defendant in the district in comparison with that of other places of business of the defendant
in other venues. Such a comparison might reveal that the alleged place of business is not really a
place of business at all.’”’). It was with a careful view toward the discovery-based evidentiary facts
in that particular situation, coupled with the specific parameters of Cray in mind, that the Court
reached its conclusions in SEVEN. Given the present case, which is on all fours with the facts in
SEVEN, the Court denies the Motion.
So Ordered this
Aug 7, 2019
_ AA
RODNEY GILSTRAP \
UNITED STATES DISTRICT JUDGE