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Google’s Servers Housed By A Third-Party ISP Qualify As A Regular And Established Place Of Business To Establish Proper Venue In The Eastern District Of Texas

In our continued post-TC Heartland coverage, Judge Gilstrap in the Eastern District of Texas recently held that venue was proper because Google exercises exclusive control over physical servers implicated by the litigation, as well as the physical space within which the server is located and maintained. The court emphasized that the place where the server is located occupies a physical space, which is more than merely a virtual space or electronic communications from one person to another. In additional to occupying physical space, Google exercises exclusive control over the digital aspects of the third-party that hosts the server.

Google retains more control over the server than under a general lease arrangement. For example, Google requires its third party ISPs to provide “rack space, power, network interfaces, and IP addresses . . . in consultation with Google . . . remote assistance and installation services . . . network access between the Equipment and Host network subscribers . . .” The ISP agreement makes it clear that the ISP does not own the server(s)–Google does. Google’s ownership of the server and its contents is absolute, as is Google’s control over the server’s location upon installation. Accordingly, the server itself and the place where it is physically housed, both independently and together, met the statutory requirement of a “physical place” sufficient to confer proper venue.

See Judge Gilstrap’s order here.

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About this Author

Andrew H. DeVoogd, Mintz Levin, Intellectual Property Litigation Lawyer, International Trade Commission Investigations attorney
Associate

Drew focuses his intellectual property practice in patent litigation specifically in International Trade Commission Section 337 investigations. He has participated in all phases of high-stakes patent litigation in the ITC, including as part of the strategy and trial team at multiple ITC evidentiary hearings, and also has significant experience in patent litigation in the federal district courts. In addition, Drew helps clients protect and leverage IP rights to maximize their value through strategic counseling, and has participated in negotiating and drafting numerous...

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Anthony E. Faillaci, intellectual property Attorney, Mintz Levin Law Firm
Associate

Tony is an Associate in the firm’s Boston office. He has worked with a wide range of technologies including manufacturing, telecommunications, and software development.

Tony’s experience includes assisting in the preparation of patent applications and pre-suit diligence, including patent portfolio analysis; drafting infringement/non-infringement and validity/invalidity analyses; and providing technical and scientific advice to legal practitioners in ITC-337 investigations and US District Court matters. During law school, Tony served as the production editor of the Journal of Health & Biomedical Law.

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