Neal Katyal, a partner with Hogan Lovells in Washington, D.C. Photo by Diego Radzinschi

Google is asking the entire Federal Circuit to review a divided panel decision that let the company be sued for patent infringement in the Eastern District of Texas.

U.S. District Judge Rodney Gilstrap ruled in July that Google servers housed in Internet Service Providers in the district meet the “regular and established place of business” requirement of the U.S. patent venue statutes. Google and a host of tech companies complained to the Federal Circuit that Gilstrap is defying the Supreme Court's TC Heartland v. Kraft Foods Group Brands decision on patent venue and the Federal Circuit decisions applying it.

The Federal Circuit turned away Google by a 2-1 vote Oct. 29, holding that venue challenges should wait until after trial unless they pose “broad and fundamental legal questions” implicating the administration of justice. Google's case is too fact-specific to meet that standard, the court stated in a per curiam order.

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Hogan Lovells partner Neal Katyal argues in a petition for rehearing  to be filed Tuesday that Gilstrap's order is already having a broad impact. Before July, Google hadn't been sued once for patent infringement in the Eastern District of Texas, he states. After Gilstrap's order, three suits were filed. And in just the two weeks since the Federal Circuit's order, 14 more times.

“Suits against other defendants will proliferate based on the same flawed theory of venue,” Katyal writes. “Refusing to stem that tide now is not a sensible way to administer a patent system.”

The patent owner in the case, SEVEN Networks, is represented by Thompson & Knight. The servers represent “a physical, geographical location in the district from which the business of the defendant is carried out,” thereby meeting the Federal Circuit's test for venue, the company argued in previous opposition signed by partner J. Michael Heinlein.

Katyal can probably count on one vote for en banc review. Dissenting Judge Jimmie Reyna wrote that the majority—Judges Timothy Dyk and Richard Taranto—had failed to recognize “the far-reaching implications of the district court's ruling.”

Whether Google can find six more votes among the court's remaining nine members is doubtful, given that Chief Judge Sharon Prost made clear earlier this year that the court has little interest in hearing further TC Heartland-related challenges before trial.

Plus, Google appears to be running out of time. Trial is scheduled for January in SEVEN Networks v. Google.

Nevertheless, Katyal is giving it his best shot. Gilstrap's order, he writes, will “subject numerous companies to suit or the threat of suit where they have no proper place of business. It will restore the permissive venue regime that the Supreme Court, in TC Heartland, sought to rein in.” Quoting the Federal Circuit's BigCommerce decision from earlier this year, he concludes, “If ever this court's 'supervisory [and] instructional' function were essential, it is now.”