A patent infringement suit brought against Google by Personal Audio, LLC has been transferred from the Eastern District of Texas (1:15-cv-00350) to the District of Delaware (1:17-cv-01751) due to improper venue. This appears to be the first time that a court has transferred a case against Google for that reason since the US Supreme Court issued its May 22 opinion in TC Heartland, which held that the narrower patent venue statute (28 USC Section 1400(b)), not the general venue statute (28 USC Section 1391), governs in infringement suits. In addition to the issue of venue propriety itself, the court also ruled on two other, threshold issues related to venue that had not been previously addressed by TC Heartland or subsequent cases: that the burden of proof for venue challenges falls on the plaintiff, under prior precedent for the patent venue statute; and that venue in patent suits should be analyzed based on facts and circumstances existing at the time a suit is filed, in light of the text of the statute.
While a Texas court considers a motion to dismiss a September 2015 affirmative case filed by Personal Audio, LLC, Alphabet (Google) has filed an action (3:17-cv-05583) in the Northern District of California seeking declaratory judgments that the same two patents at issue in Texas are invalid and are not infringed and that the accused products specifically identified in infringement contentions are licensed. The patents generally relate to audio player devices, with infringement accusations focused on devices that include the Google Play Music application. Google filed the motion to dismiss for improper venue in the wake of the US Supreme Court’s TC Heartland decision; it earlier lost a motion to transfer for convenience to California.