Home Court Advantage: In re Google, a Compact Disc, and the Shrinking Map of Patent Venue

On October 6, 2026, the Federal Circuit ordered a patent case against Google out of the Western District of Texas and into the Northern District of California. The order runs five pages. It is per curiam and nonprecedential, and its effect is narrow in one sense and significant in another. It binds no one but the parties. It also says, about as plainly as an appellate court can, where the largest technology companies should expect to answer for patent infringement: at home.

Bottom Line Up Front

In In re Google LLC, No. 2026-157 (Fed. Cir. Oct. 6, 2026), a panel of Judges Dyk, Mayer, and Stark granted mandamus and directed that University of Southern California v. Google LLC, No. 1:25-cv-01734-ADA (W.D. Tex.), be transferred to the Northern District of California (“NDCA”). Judge Alan Albright had denied transfer on July 28, 2026, finding seven of the eight convenience factors neutral and one slightly in favor of transfer. The Federal Circuit re-scored two of the neutral factors, questioned a third, and concluded that the denial was “a clear abuse of discretion.”

Three lessons follow. First, a defendant’s general presence in a district, however large, now counts for very little. What counts is where the accused feature was engineered. Second, the Federal Circuit will re-weigh a district court’s factor-by-factor findings on mandamus, even where the district court found the movant’s arguments “conclusory and unsupported.” Third, a patent owner who wants to stay in its chosen forum has to build the venue record before filing, feature by feature and witness by witness. A checklist appears at the end of this article.

I. What the District Court Decided

The University of Southern California (“USC”) sued Google in Austin on October 27, 2025, alleging that Google Earth, Google Maps, and Google Street View infringe two patents. Google moved to transfer under 28 U.S.C. § 1404(a). Its theme was that both parties are located in California, that documents and witnesses are “overwhelmingly located” in NDCA, and that the creators of the relevant prior art are there as well. The parties took venue discovery and briefed the motion under seal.

Judge Albright applied the Fifth Circuit’s decision in In re Clarke, 94 F.4th 502 (5th Cir. 2024). Under Clarke, the party seeking transfer must show that the convenience gains are “significant” and that they will “actually materialize.” Measured against that standard, he found Google’s showing thin.

On sources of proof, the court found that Google “fails to identify an actual physical document that may exist and may be needed for trial.” Google’s best example was a single CD of prior art software, and the court reasoned that the software could be inspected in NDCA wherever the trial was held. USC pointed to at least ten witnesses in the Western District of Texas (“WDTX”) with potentially relevant documents, against six identified custodians in NDCA. The documents, the court concluded, “are extremely likely to be equally accessible in any district.” Neutral.

On compulsory process, non-party witnesses sat within the subpoena power of both courts, and Google did not show that its California witnesses mattered more. As to the named inventor, who lives in NDCA, the court found “no evidence that the inventor’s in person testimony, or testimony at all, would be necessary for this case.” Neutral.

On willing witnesses, Google showed that its technical witnesses are closer to NDCA. USC answered that eleven potential party witnesses live in WDTX and seven in NDCA, and it accused Google of cherry-picking. Slightly in favor of transfer.

On practical problems, the court called Google’s argument “completely devoid of reasoning.” Neutral. On local interest, the court accepted that NDCA has an interest as the place where the accused features were developed. It also found that “the citizens of WDTX have an interest in this dispute” because Google employs WDTX citizens who contribute to the local economy. The specifics are redacted. Neutral.

The other three public interest factors were treated as neutral. On court congestion, the order adds a telling footnote: the case “will be transferred upon the undersigned’s departure, which may delay these proceedings.” It had been reported in April that Judge Albright would leave the bench in August.

Seven factors neutral. One slightly in favor of transfer. Motion denied.

II. What the Federal Circuit Did

Seventy days later, the Federal Circuit granted the writ. Its reasoning has four steps.

First, the panel started from the district court’s own tally. No factor favored WDTX, and the one factor that favored transfer was, in the panel’s words, “perhaps the most important factor on this record: the convenience of the witnesses.”

Second, the panel held that sources of proof could not be neutral. The district court “erred in giving the location of that CD no weight,” the panel wrote, citing the Fifth Circuit’s 2008 en banc decision in In re Volkswagen of America, Inc., 545 F.3d 304, for the point that easier access to evidence “does not render this factor superfluous.” The panel also found an inconsistency. If the location of Google’s technical employees gave the witness factor some weight, then “by the district court’s own logic, the sources of proof factor should also at least have some weight in favor of transfer.”

Third, the panel held that local interest favored NDCA. It relied on “uncontroverted evidence” that Google “designed, developed, and implemented the accused functionality in NDCA and not at all in WDTX,” and it observed that USC’s willfulness allegations “appear to center on events that took place in NDCA.” According to the panel, the only local connection found below was quality assurance testing of one accused product in WDTX, and that testing had no connection to the accused functionality. It gave WDTX a local interest, the panel said, but one “not comparable to that of NDCA.”

Fourth, the panel criticized the compulsory process finding, counting seven potential non-party witnesses in NDCA against five in WDTX and stressing that the inventor is among the seven. It then declined to rest on the point: “Even without disturbing the district court’s conclusion as to the compulsory process factor, the decision to deny transfer here was patently erroneous.”

The order’s final paragraph contains a sentence that will appear in every transfer motion a California technology company files from now on:

“At bottom, this case is about a California university suing a Northern California company for products designed and developed in Northern California based on patents invented by a resident of Northern California.”

That sentence is the strongest part of the order, and patent owners should take it seriously. USC is based in Los Angeles, and neither order identifies a Texas tie of its own. Its inventor lives in Northern California, and the panel read its willfulness story as set there. The district court’s reliance on Google’s contribution to the local economy was also the weakest part of its order, because Fifth Circuit law ties local interest to the events giving rise to the suit and not to the parties’ general ties to a forum. On these facts, transfer was always a risk.

The problem is how the panel got there.

III. Three Problems With the Order

Each repays scrutiny.

First, this was mandamus and not an appeal. The en banc Fifth Circuit drew the line in Volkswagen: “we are not to issue a writ to correct a mere abuse of discretion, even though such might be reversible on a normal appeal.” That court has since repeated that “the decision of whether to transfer a case is committed to the district court’s discretion.” In re Planned Parenthood Federation of America, Inc., 52 F.4th 625 (5th Cir. 2022). Against that standard, read the verbs in the Federal Circuit’s order.

Three factors the district court scored as neutral “appear to likewise point towards NDCA.” The willfulness allegations “appear to center” on California. Twice, a key fact “appears undisputed.” A result is supposed to be patently erroneous before the writ issues, and four appearances in five pages is a thin foundation for that conclusion. The panel acknowledged that Fifth Circuit law governs. Yet the order never mentions Clarke, the decision on which the district court built its analysis, or the requirement that convenience gains be “significant” and “actually materialize.”

Second, one fact is counted three times. The panel counted three factors for transfer: willing witnesses, sources of proof, and local interest. All three rest largely on the same thing, which is where Google seats the engineers responsible for the accused features. Their location is the witness factor. Their location then serves as a proxy for sources of proof. Their location is finally the place where the accused functionality was “designed, developed, and implemented,” which is local interest. A defendant decides where to seat its engineers. Under this reasoning, that one decision carried three of the eight factors, and the other five were neutral. Meanwhile, the Texas employees were set aside as “primarily sales and marketing employees,” although the people who know how a product is sold and which features drive demand are the witnesses a damages case requires.

Third, a compact disc. The district court found that this is a case with “little to zero physical documents.” The Federal Circuit’s first answer was a CD kept in Northern California and a quotation from 2008. The district court had pointed out that what matters about the disc is the software on it, “which would have to be loaded onto a computer and be analyzed.” When the storage location of a disc can help tip a venue factor, the factor has stopped measuring convenience.

IV. The Backyard Problem

Step back from the factors and look at the map.

From 1990 until 2017, a patent owner could generally sue a domestic corporation in any district where the corporation was subject to personal jurisdiction. In TC Heartland LLC v. Kraft Foods Group Brands LLC, 581 U.S. 258 (2017), the Supreme Court confined venue under 28 U.S.C. § 1400(b) to the defendant’s state of incorporation or a district where it has committed acts of infringement and has a regular and established place of business. The patent owner’s choice was already limited to the defendant’s own footprint.

Google chose to put employees and product testing in the Western District of Texas. USC said that it sued in WDTX because of that presence. The answer it received is that the footprint is not enough. Section 1404(a), as the Federal Circuit applies it, narrows the map a second time, to the district where the engineers sit. For the largest technology companies, that is headquarters.

The Fifth Circuit has said that “the fact that litigating would be more convenient for that defendant elsewhere is not enough to justify transfer.” Planned Parenthood (quoting Defense Distributed v. Bruck, 30 F.4th 414 (5th Cir. 2022)). Set the compact disc aside, and the factors that carried this case measure little more. A company of Google’s size is not burdened in any real sense by trying a case in a district where it already has employees and tests one of the accused products. The university, the startup, or the individual inventor on the other side is told that the only convenient courthouse in the country is the one in the defendant’s hometown, before a jury drawn from a community where the defendant is a major employer.

A manufacturer that sells a product nationwide expects to answer where the product does harm. A technology company whose product is used in every district in the country can now expect to answer where it writes its code. Congress did not write that rule. It has been assembled in mandamus orders, a few pages at a time, and this one will be cited as if it were precedent.

V. A Venue Checklist for Patent Owners

The Texas courts are not closed to patent owners. The venue record simply has to be built on purpose. Most of the items below come directly from what won and what lost in these two orders.

BEFORE FILING

☐       Map the accused feature, not the accused product, to people and places. Identify who designed, built, and tested the specific functionality and where they sit.

☐       Find technical witnesses in the forum. Sales and marketing employees were discounted. Engineers, product managers, and testers tied to the accused feature are what move the witness factors.

☐       Take inventory of the patent owner’s own ties. A plaintiff with no connection to the forum is asking the defendant’s connection to carry the whole motion.

☐       Decide whether the inventor is a willing witness. An inventor outside the patent owner’s control who lives in the defendant’s home district will be counted against the patent owner. A consulting agreement and a declaration that the inventor will attend trial in the chosen forum take the inventor out of the compulsory process column, although the inventor’s location still counts under the willing witness factor.

☐       Count the non-party witnesses within subpoena range of each forum and rank them by importance. The panel counted seven against five and then asked who knew the accused features.

☐       Look for physical evidence in the forum. If a single CD can matter, so can a test lab, a data center, a prototype, or a customer installation.

☐       Compare the alternatives: another district where the relevant engineering team sits, the defendant’s state of incorporation, and, where there are imported articles and a domestic industry, the International Trade Commission, where section 1404(a) does not apply.

IN THE COMPLAINT

☐       Plead the forum facts. Allege the teams, facilities, testing, and infringing acts in the district that relate to the accused feature.

☐       Know where the willfulness story is set. Pre-suit notice, meetings, and licensing discussions have a geography, and the panel used USC’s against it.

IN VENUE DISCOVERY AND BRIEFING

☐       Controvert everything. This order turns on evidence the panel called “uncontroverted” and on facts it described as “undisputed.” Depose the venue declarant, test the witness list for cherry-picking, and put contrary evidence in the record.

☐       Tie every local witness and document to a specific issue. The panel discounted witnesses with “knowledge of the accused products generally rather than of the accused features.”

☐       Do not rest local interest on jobs and economic presence. Show development or testing of the accused feature in the district, or infringing activity that is distinctive to it.

☐       Hold the movant to Clarke. Build the opposition around whether the claimed gains are “significant” and will “actually materialize,” and ask the court to make its findings in those terms.

☐       Ask for consistent findings across factors. The panel used the tension between the witness finding and the sources of proof finding to reopen the latter.

AFTER THE RULING

☐       Brief the mandamus standard and not only the factors. Volkswagen separates an abuse of discretion from a clear one. Put that distinction, and the deference owed to the district court’s findings, at the front of the opposition.

☐       Plan for the transferee court from the first day. Budget, counsel, and funding should assume that transfer is possible, so that a transfer order changes the venue and does not end the case.

The Federal Circuit reduced this case to one sentence about California. Patent owners should reduce it to one sentence about proof. Showing that the defendant is big in the district no longer wins the venue fight. Showing that the accused feature lives there still can. Until Congress, the Supreme Court, or an en banc court says otherwise, a company that sells to every district in the country can insist on answering in one.