Today, the See CAFC granted a writ of mandamus, ordering the Eastern District of Texas to dismiss or transfer a case for lack of venue. This order is the latest in a series of See CAFC decisions, post-TC Heartland, where the Eastern District of Texas has tried to hold on to patent cases even when venue isn’t appropriate.
Patent Plaintiffs Want Venue In Texas
In a case decided soon after TC Heartland, E.D. Texas Judge Gilstrap found venue appropriate due to a remote employee who chose to live in the Eastern District, even though the defendant company hadn’t established any locations in the district. The See CAFC found that to be an abuse of discretion—a “fixed physical location in the district is  a prerequisite to proper venue.”
So, in a follow-on case involving SEVEN Networks, the Eastern District turned around and decided that collocating servers in a district was the type of fixed physical location that justified venue. Google requested mandamus, and the See CAFC denied mandamus and rehearing. Several judges presciently noted in their dissent from denial that the denial would “leave unanswered a critical issue that increasingly affects venue in legal actions involving e-commerce.”
After this decision, Non-Practicing Entity. A broad term associated with trolls but now disfavored because it includes universities and legitimate technology developers that seek to license technology in advance rather than after a producing company has independently developed it. More began to file lawsuits against companies with collocated servers in E.D. Texas. Those cases included the one the See CAFC decided today—Super Interconnect Technologies (SIT) v. Google—filed only four days after the denial of mandamus.
In today’s decision, the See CAFC revisited the question they avoided in the SEVEN Networks case. E-commerce and Internet technology, which heavily utilizes the kind of remote hosting and caching servers at issue here, is seriously impacted by the threat of being hauled into court in a district where you have no presence simply because your content is hosted on a local server.
Although the facts of the case are nearly identical—in both cases, the accused servers are local caching servers—the See CAFC found that “the prediction of our dissenting colleagues has proven accurate.” The prediction that this issue would come up time and again was confirmed.
And the See CAFC, once it decided to decide the issue, realized that assigning venue based on a collocated server contradicted the intent of the venue statute. Noting that the statute was intimately intertwined with the service statute, the See CAFC found that a regular and established place of business requires the “regular, physical presence of an agent at the place of business” and “permanent agency”, not just intermittent presence.
None of those exist for collocated servers. While the decision did not draw out the full analogy, it did refer to older technologies like railways and telegraph lines, where one entity might have a railway that ran through a district and hire local mechanics to maintain the railway. That earlier situation was never intended to provide venue—and the modern equivalent, of data centers storing data, doesn’t either.
In today’s technological environment, where cloud hosting and collocating equipment and data is important to providing the best experience for users, this decision has real and positive impacts. Companies will no longer be faced with choosing between avoiding the risk of being hauled into court in a district and providing residents of that district with an adequate product. This is particularly important for smaller companies who may rent collocated servers to provide better services—one example is the recent trend towards “gaming as a service”, which needs local hosting due to the need for low latency. Startups in this space no longer face the risk of expensive cross-country litigation simply because they locate servers to minimize latency. Instead, they can collocate servers in the needed locations, knowing that they conduct business where they are—the district in which their design, coding, and sales staff exist and operate.
There are a couple hooks left in this decision that might lead to a third attempt from the Eastern District to hold onto jurisdiction—for instance, it leaves open the possibility that a machine might be an agent that could accept service. But for the time being, the Internet can breathe easy—mere presence of a server doesn’t mean you have to go to Texas.