Decision Clarifying Patent Venue May Still Spur More Fights
A Federal Circuit decision that the presence of Google servers in the Eastern District of Texas doesn't mean the company must face patent suits there makes clear that patent venue requires a human element, but could open the door to creative new arguments from plaintiffs, attorneys say.
Another possible new argument was floated in a concurring opinion by Judge Evan Wallach, who suggested that Google’s end users could be acting as its agents "by virtue of voluntarily or involuntarily sharing information generated on Google’s servers," since the company’s core business model is monetizing data.
He said the evidence in the case was not sufficient to determine if that’s true, so it would have to be addressed by district courts. That seems to present the tantalizing possibility for plaintiffs that they can argue virtually everyone who uses Google is a Google agent, and the company can therefore be sued anywhere, including the Eastern District of Texas.
That seems like a long shot, said Greg Herrman of Blank Rome LLP.
"I don't know that it makes much sense to have every human being on earth be an agent of a particular company, certainly without their express consent," Herrman said. Nevertheless, he added, "I think it's something other plaintiffs may try to use to bring companies like Google into venues like the Eastern District of Texas."
"Decision Clarifying Patent Venue May Still Spur More Fights," by Ryan Davis was published in Law360 on February 20, 2020.