`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`RFCyber CORP.,
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`v.
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`Plaintiff,
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`GOOGLE LLC and GOOGLE PAYMENT
`CORP.
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`Defendants.
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`Case No.
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`JURY TRIAL DEMANDED
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`COMPLAINT FOR PATENT INFRINGEMENT
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`Plaintiff, RFCyber Corp. (“RFCyber” or “Plaintiff”), files this original Complaint against
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`Defendants Google LLC and Google Payment Corp. (collectively, “Google” or “Defendants”) for
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`patent infringement under 35 U.S.C. § 271 and alleges as follows:
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`THE PARTIES
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`1.
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`RFCyber is a corporation organized and existing under the laws of the State of
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`Texas, with its principal place of business located at 7300 Lone Star Drive, Suite c200, Plano, TX
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`75024. RFCyber is the owner of all right, title, and interest in and to, or is the exclusive licensee
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`with the right to sue for U.S. Patent Nos. 8,118,218, 8,448,855, 9,189,787, 9,240,009, and
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`10,600,046.
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`2.
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`Google LLC is a Delaware corporation and maintains its principal place of business
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`located at 1600 Amphitheatre Parkway, Mountain View, California 94043, and may be served with
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`process through its registered agent, Corporation Service Company at 251 Little Falls Drive,
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`Wilmington, DE 19808.
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`3.
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`Google Payment Corp. is a Delaware corporation and maintains its principal place
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`of business located at 1600 Amphitheatre Parkway, Mountain View, California 94043, and may
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`GOOG-1012
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`be served with process through its registered agent, Corporation Service Company at 251 Little
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`Falls Drive, Wilmington, DE 19808.
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`4.
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`Upon information and belief, Google LLC does business in Texas, directly or
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`through intermediaries, and offers its products and/or services, including those accused herein of
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`infringement, to customers and potential customers located in Texas, including in the Judicial
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`Eastern District of Texas.
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`5.
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`On information and belief, Google maintains regular and established places of
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`business within this Judicial District including at least the following locations: (1) 700 Lakeside
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`Parkway, Flower Mound, Texas 75028; (2) 1201 East Spring Creek Parkway, Suite C-130, Plano,
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`TX 75074; (3) 6205 Coit Road, Suite 336, Plano, TX 75024; (4) 1920 Eldorado Parkway, Suite
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`600, McKinney, TX 75069; and 2707 Cross Timbers, Suite 122, Flower Mound, TX 75028. Upon
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`information and belief, Defendants employ individuals in this Judicial District involved in the sales
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`and marketing of its products.
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`JURISDICTION
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`6.
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`This is an action for patent infringement arising under the patent laws of the United
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`States, 35 U.S.C. §§ 1, et seq. This Court has jurisdiction over this action pursuant to 28 U.S.C.
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`§§ 1331 and 1338(a).
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`7.
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`This Court has personal jurisdiction over Defendants. Defendants regularly
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`conduct business and have committed acts of patent infringement within this Judicial District that
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`give rise to this action, and have established minimum contacts with this forum such that exercise
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`of jurisdiction over Google would not offend traditional notions of fair play and substantial justice.
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`Google has committed and continues to commit acts of infringement in this Judicial District, by,
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`among other things, offering to sell, selling, using, importing, and making products and services
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`2
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`that infringe the asserted patents. Google has further induced acts of patent infringement by others
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`in this Judicial District and/or has contributed to patent infringement by others in this Judicial
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`District, the State of Texas, and elsewhere in the United States.
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`8.
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`Venue is proper in this Judicial District pursuant to 28 U.S.C. §§ 1391 and 1400(b).
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`Google is registered to do business in Texas and, upon information and belief, Google has
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`transacted business in the Eastern District of Texas and has committed acts of direct and indirect
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`infringement in the Eastern District of Texas. Google has regular and established places of business
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`in this Judicial District as set forth below and is deemed to reside in this Judicial District.
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`9.
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`Google is a multi-national technology company that collects, stores, organizes, and
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`distributes data. In addition to its service model for distribution of data (e.g., movies, search results,
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`maps, music, etc.), Google has an expansive regime that gathers data on residents of this Judicial
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`District through the hardware devices it sells (e.g., phones, tablets, and home audio devices) and,
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`also, through the operating systems and apps it provides. As an example, Google gathers data when
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`a resident runs its operating systems and apps (e.g., Android and Google Pay).1 As another
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`example, Google gathers data when a resident interacts with Google’s plethora of services such as
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`search,
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`contactless
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`payment,
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`email, music,
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`and movie
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`streaming.
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`See
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`https://safety.google/privacy/data/ (indicating that Google gathers data from “things you search
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`for,” “Videos you watch,” “Ads you view or click,” “Your location,” “Websites you visit,” and
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`“Apps, browsers, and devices you use to access Google services”). As yet another example,
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`Google gathers data “where you’ve been,” “everything you’ve ever searched—and deleted,” “all
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`the apps you use,” “all of your YouTube history,” “which events you attended, and when,”
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`1 See e.g., “AP Exclusive: Google tracks your movements, like it or not,”
`https://apnews.com/828aefab64d4411bac257a07c1af0ecb/AP-Exclusive:-Google-tracks-
`yourmovements,-like-it-or-not; see also https://pay.google.com/about/learn/.
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`3
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`GOOG-1012
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`“information you deleted [on your computer],” “your workout routine,” “years’ worth of photos,”
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`and “every email you ever sent.”2
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`10.
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`In addition to extensive data gathering on residents of this Judicial District, Google
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`has a substantial presence in this District directly through the products and services Google
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`provides residents of this District (some of which also gather data).3 Google derives revenue
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`through, among other things, direct payments from residents of this District,4 through sharing
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`residents’ data with third-parties,5 and through serving advertisements to residents.6
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`11.
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`Google describes itself as an “information company.”7 Its vision is “to provide
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`access to the world’s information in one click,” and its mission is “to organize the world’s
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`information and make it universally accessible and useful.”8 Making information available to
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`people wherever they are and as quickly as possible is critical to Google’s business.9
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`12.
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`Google’s CEO, Sundar Pichai, explained, “We want to make sure that no matter
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`who you are and where you are or how advanced the device you are using—Google works for
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`
`2 See https://www.theguardian.com/commentisfree/2018/mar/28/all-the-data-facebook-
`googlehas-on-you-privacy.
`3 Non-limiting examples include Google Search, Maps, Translate, Chrome Browser, YouTube,
`YouTube TV, Google Play Music, Chromecast, Google Play Movies and TV, Android Phones,
`Android gear, Chromebooks, Android Auto, Gmail, Google Allo, Google Duo, Google+, Google
`Photos, Google Contacts, Google Calendar, Google Keep, Google Docs, Google Sheets, Google
`Slides, Google Drive, Google Voice, Google Assistant, Android operating system, Project Fi
`Wireless phone systems, Google Pixel, Google Home, Google Wifi, Daydream View,
`Chromecast Ultra.
`4 https://support.google.com/pay/answer/7643997?hl=en&ref_topic=7644058
`5 See https://www.theguardian.com/commentisfree/2018/mar/28/all-the-data-facebook-
`googlehas-on-you-privacy.
`6 https://support.google.com/google-ads/answer/6382835?hl=en
`7 See “This Year’s Founder’s Letter” by Alphabet CEO, Sundar Pichai,
`https://blog.google/inside-google/alphabet/this-years-founders-letter//.
`8 https://panmore.com/google-vision-statement-mission-statement.
`9 Id. See also “Introduction to GCC,”
`https://support.google.com/interconnect/answer/9058809?hl=en.
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`4
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`you.”10 To meet this goal, Google developed a content delivery network that it calls the Edge
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`Network.
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`13.
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`One non-limiting example of physical presence in this Judicial District is Google’s
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`Edge Network. Google provides Android and/or web-based products and services, such as Google
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`Pay, and Google Chrome, to users throughout the world, including in this District.11 These
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`products and services are in high demand. Google reports that the Android operating system has
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`more than 2 billion monthly active devices.12
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`14.
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`Google’s Edge Network, itself, has three elements: Core Data Centers, Edge Points
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`of Presence, and Edge Nodes.13 The Core Data Centers (there are eight in the United States) are
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`used for computation and backend storage. Edge Points of Presence are the middle tier of the Edge
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`Network and connect the Data Centers to the internet. Edge Nodes are the layer of the network
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`closest to users. Popular content, including Google Maps, Google Messages, mobile apps, and
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`other digital content from the Google Play store, is cached on the Edge Nodes, which Google refers
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`to as Google Global Cache or “GGC.”
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`15.
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`Google Global Cache is recognized as one of the most important pieces of Google’s
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`infrastructure, and Google uses it to conduct the business of providing access to the world’s
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`information.14 GGC servers in the Edge Nodes function as local data warehouses, much like a shoe
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`manufacturer might have warehouses around the country. Instead of requiring people to obtain
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`10 https://time.com/4311233/google-ceo-sundar-pichai-letter/.
`11 https://support.google.com/pay/answer/9023773
`12 See https://www.theverge.com/2017/5/17/15654454/android-reaches-2-billion-monthly-
`activeusers.
`13 https://peering.google.com/#/infrastructure.
`14 https://www.blog.speedchecker.xyz/2015/11/30/demystifying-google-global-cache/.
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`5
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`information from distant Core Data Centers, which would introduce delay, Google stores
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`information in the local GGC servers to provide quick access to the data.
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`16.
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`Caching and localization are vital for Google’s optimization of network resources.
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`Because hosting all content everywhere is inefficient, it makes sense to cache popular content
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`and serve it locally. Doing so brings delivery costs down for Google, network operators, and
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`internet service providers. Storing content locally also allows it to be delivered more quickly,
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`which improves user experience. Serving content from the edge of the network closer to the user
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`improves performance and user happiness. To achieve these benefits, Google has placed Edge
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`Nodes throughout the United States, including in this Judicial District. Google describes these
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`Edge Nodes as the workhorses of video delivery.
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`17.
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`Google’s GGC servers are housed in spaces in this Judicial District leased by
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`Google. Google’s GGC servers are housed in spaces leased by Google from Internet Service
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`Providers (ISPs) whose networks have substantial traffic to Google and are interested in saving
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`bandwidth. Hosting Google servers allows ISPs to save both bandwidth and costs, as they do not
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`incur the expense of carrying traffic across their peering and/or transit links.
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`18. When an ISP agrees to host a GGC server, the parties enter into a Global Cache
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`Service Agreement, under which Google provides:
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` hardware and software—including GGC servers and software—to be housed in the
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`host’s facilities;
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`
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`technical support; service management of the hardware and software; and
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` content distribution services, including content caching and video streaming.
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`In exchange, the host provides, among other things, a physical building, rack space where
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`Google’s computer hardware is mounted, power, and network interfaces. All ownership rights,
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`6
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`title, and intellectual property rights in and to the equipment (i.e., the hardware and software
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`provided by Google) remain with Google and/or its licensors.
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`19. Multiple ISP-hosted GGC servers are in this Judicial District. Google provides the
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`location of its GGC servers, namely, Sherman, Tyler, and Texarkana.
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`
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`Source: Uniloc 2017 LLC v. Google LLC, Case No. 2:18-cv-00550, Dkt. 1 at 8 (E.D. Tex. 2018);
`https://peering.google.com/#/infrastructure.
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`Suddenlink Communications, for example, is an ISP that hosts six GGC servers in
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`20.
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`Tyler, Texas.
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`21.
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`CableOne is an ISP that hosts three GGC servers in Sherman, Texas and three
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`GGC servers in Texarkana, Texas.
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`22.
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`Google caches content on these GGC servers located in this Judicial District.
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`7
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`23.
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`Google’s GGC servers located in this Judicial District cache content that includes,
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`among other things: (a) maps; (b) messages; and (c) digital content from the Google Play store.
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`24.
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`Google’s GGC servers located in this Judicial District deliver cached content for
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`the items in the preceding paragraph to residents in this District.
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`25.
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`Google generates revenue (a) by delivering video advertising; (b) from apps; and
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`(c) from digital content in the Google Play store.
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`26.
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`Google treats its GGC servers in this Judicial District the same as it treats all its
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`other GGC servers in the United States.
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`27.
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`The photographs below show Google’s GGC servers hosted by Suddenlink and
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`the building where they are located at 322 North Glenwood Boulevard, Tyler, Texas 75702.
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`28.
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`Google not only exercises exclusive control over the digital aspects of the GGC,
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`but also exercises exclusive control over the physical server and the physical space within which
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`the server is located and maintained.
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`29.
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`This Judicial District has previously determined that the GGC server itself and the
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`place of the GGC server, both independently and together, meet the statutory requirement of a
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`8
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`“physical place.” See Seven Networks, LLC v. Google LLC, Case No. 2:17-cv-00442-JRG, Dkt.
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`235 at 24 (E.D. Tex. July 19, 2018).
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`30.
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`Likewise, this Judicial District has determined that GGC servers and their several
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`locations within this District constitute “regular and established place[s] of business” within the
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`meaning of the special patent venue statute. See Seven Networks, LLC v. Google LLC, Case No.
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`2:17-cv-00442-JRG, Dkt. 235 at 38 (E.D. Tex. July 19, 2018).
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`31.
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`Similarly, this Judicial District has determined that the GGC servers and their
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`locations within the various ISPs within this District are “places of Google” sufficient to meet
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`the statutory requirement of § 1400(b). See Seven Networks, LLC v. Google LLC, Case No. 2:17-
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`cv-00442-JRG, Dkt. 235 at 41 (E.D. Tex. July 19, 2018).
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`Google Makes Google Pay Available in This Judicial District
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`32.
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`Google Pay, also known as “G Pay,” “Pay with Google” and “Android Pay” is a
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`“fast, simple way to pay online or make contactless payments with your phone.”15 Google Pay
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`allows users in this Judicial District to:
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` “Tap and pay to make purchases with your phone”
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` “Buy items in apps and on websites”;
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` “Fill in forms automatically on Chrome”;
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` “Buy Google products”;
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` “Send money to friends and family”; and
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` Use gift cards, loyalty cards, tickets, and coupons at participating retailers.16
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`15 https://pay.google.com/about/.
`16 https://support.google.com/pay/answer/9026749?co=GENIE.Platform%3DAndroid&hl=en#.
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`9
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`Source: https://pay.google.com/about/business/checkout/
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`33.
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`Google Pay is accepted at “millions” of locations, including throughout this
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`Judicial District.17 For example, Google Pay is accepted in stores including, among others,
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`Dunkin Donuts, McDonalds, Nike, Target, Trader Joes, Ulta, Walgreens, Whole Foods, ACME,
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`Aeropastale, American Eagle Outfitters, ARCO, Best Buy, Bloomingdales, Champs Sports,
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`Chevron, Chick-Fil-A, Crate & Barrel, the Disney Store, Express, Foot Locker, GameStop,
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`JetBlue, KFC, Kohls, LEGO, Macy’s, Martin’s, Office Depot, Panera Bread, Peet’s Coffee,
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`Petco, Sephora, Staples, Subway, and Stop & Shop.18
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`34.
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`At least the Google Pay point of service locations (“POS”) are regular and
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`established places of business of Google. For example, Google establishes Merchant Hardware
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`17 https://pay.google.com/about/where-to-use/
`18 Id.
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`10
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`Requirements, establishes data security requirements (e.g. complaint with the Payment Card
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`Security Standards Council requirements),19 and mandates that participating stores, referred to as
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`“Sellers” comply with terms of service provided by Google Payment Corp (“GPC”), a subsidiary
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`of Google LLC, to Google’s users.20 For example, the terms of service provide that:
`
` “Seller must comply with the Policies and any other limits concerning use of the Service
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`as updated by GPC from time to time, including without limitation:(i) the Integration
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`Guidelines; (ii) the Button and Acceptance Logo Guidelines and the Google Brand
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`Feature Guidelines; (iii) GPC requirements for data security and privacy, including the
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`Google Privacy Policy and Google Payments Privacy Notice; (iv) operating rules and/or
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`policies of the card associations or networks that are used to process the Payment
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`Transactions attached hereto as Exhibit A (as may be updated from time to time); or
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`(v) Carrier requirements applicable to Carrier Billing.”; and
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` “Seller agrees not to use the Service through websites other than the Seller Websites.
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`GPC at all times reserves approval authority as to the implementation of the Service on
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`each Seller Website, and GPC may upon notice suspend Seller’s use of the Service until
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`Seller corrects implementation issues as reasonably specified by GPC.”21
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`35.
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`Google further mandates that Sellers and their developers comply with Google
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`Pay API terms of service (“Google Pay API ToS”), Google Pay API Acceptable Use Policy, and
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`
`
`19 Id.
`20 See https://payments.google.com/payments/apis-
`secure/u/0/get_legal_document?ldo=0&ldt=sellertos.
`21 Id.
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`11
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`rules set forth in the Google Pay Policy Center.22 For example, the Google Pay API ToS
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`mandates that:
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` “You must comply with the Terms, the Google Pay APIs Acceptable Use Guidelines,
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`and the Google Pay API Brand Guidelines found at the Google Pay API developer site.”
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` “Unless Google provides otherwise, You may arrange for a platform provider to assist
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`You in integrating Your payment transaction interfaces with the API. Such platform
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`provider must act exclusively on Your behalf and in accordance with its own written
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`agreement with Google. You agree that Google may require you to disengage from Your
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`platform provider if, in Google’s discretion, the platform provider contributed to a
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`violation of these Terms or other harm to Google.”; and
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` “You may not: (a) establish a minimum or maximum purchase amount that is specific to
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`an End User making a purchase through the API; (b) require an End User to provide you
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`with the account numbers of any credit card, debit card, or other payment instrument in
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`addition to information provided through the API; or (c) add any service use surcharge
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`that is specific to an End User making a purchase through the API.”23
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`36.
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`Google further partners with banks and payment partners in this judicial District
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`in Delivering Google Pay services to its users, including, among others, AMEX, BAC (Bank of
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`America), Barclays US, Capital One, Chase, CITI, Synchrony, and Wells Fargo. On information
`
`and belief, Google further binds sellers to terms it negotiates with its payment partners, such as
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`terms provided in its partners.
`
`
`22 See https://developers.google.com/pay/api/android/guides/setup;
`https://payments.developers.google.com/terms/sellertos;
`https://support.google.com/googleplay/android-developer/answer/9858738.
`23 https://payments.developers.google.com/terms/sellertos; see also
`https://developers.google.com/pay/api/android/guides/brand-guidelines.
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`12
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`Google Wi-Fi at Starbucks Locations in This Judicial District
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`37.
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`Google provides Wi-Fi infrastructure and Wi-Fi service at Starbucks locations in
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`this District.24 Google and Starbucks entered into an agreement in which Google provides its
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`Google Wi-Fi or Google Fiber service at all Starbucks locations in this Judicial District,
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`including at Starbucks stores and at Target stores.25 First-time customers connect and use Google
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`Wi-Fi on their devices in this District by selecting “Google Starbucks” from their respective
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`device’s list of available wireless networks and entering their respective name, email address,
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`and postal code. Return customers are automatically connected to Google Wi-Fi on their
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`respective devices at any Google Wi-Fi location. Upon connecting to the Google Wi-Fi locations
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`in this District, Google provides connected customers with Internet access over Google’s
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`infrastructure and services.
`
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`24 See https://customerservice.starbucks.com/app/answers/detail/a_id/5796/~/how-can-i-access-
`wifi-in-starbucks-stores%3F;
`https://support.google.com/fiber/answer/3289712?visit_id=637050364069556126-
`264756134&hl=en&rd=1;
`25 https://www.starbucks.com/store-locator?map=32.467135,-95.387478,8z
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`13
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`Source: https://www.starbucks.com/store-locator/store/15590/mc-cann-loop-281-407-w-loop-
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`281-longview-tx-756054449-us.
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`38.
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`Google uses its Google Wi-Fi infrastructure and Google Wi-Fi services at
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`Starbucks locations in this Judicial District to provide customers with telecommunications
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`services through its own phone carrier network, Google Fi. Google Fi is owned and operated by
`
`Google. In order to use Google Fi phone service in this District, Google provides its customers
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`with special SIM cards and software to connect to and automatically switch between four sources
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`of network infrastructure and services: T-Mobile, Sprint, US Cellular, and public Wi-Fi
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`networks. As described below, Google has entered into agreements with T-Mobile, Sprint, and
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`US Cellular to lease the carriers’ infrastructure and services to provide Google Fi customers with
`
`14
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`voice and data services. As a fourth source, Google Fi uses public Wi-Fi networks, including the
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`Google Wi-Fi at Starbucks locations in this District, to provide its phone carrier service. The
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`Google Wi-Fi at Starbucks locations in this District are fixed geographical locations. They are
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`“regular” and “established” because they operate in a “steady, uniform, orderly, and methodical
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`manner” and are sufficiently permanent. They are “of the defendant” because Google has
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`contractual and/or property rights to use the Google Wi-Fi locations to operate its businesses,
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`including the Google Fi phone carrier business.
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`39.
`
`Google determines whether a Google Fi customer in this Judicial District uses a
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`certain Wi-Fi network, including the Google Wi-Fi networks at Starbucks locations, using the
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`Google-provided SIM card and software on the customer’s phone.
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`Source: https://fi.google.com/about/coverage/
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`
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`15
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`Google’s “Google Fi”
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`40.
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`As described above, Google owns, operates, and provides telecommunications
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`infrastructure and service in this Judicial District through its own phone carrier network, Google
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`Fi. Google provides cellular and Wi-Fi infrastructure and services for payment, phone,
`
`messaging, and data services in this District. Google provides its customers voice and high-speed
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`data coverage (4G LTE) for cities such as Tyler, Longview, and Marshall, Texas.
`
`
`
`Source: https://fi.google.com/coverage?q=Marshall%2C$20TX$2C%20USA
`
`41.
`
`The cell towers used for Google’s services are fixed geographical locations. They
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`are “regular” and “established” because they operate in a “steady, uniform, orderly, and
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`methodical manner” and are sufficiently permanent. They are “of the defendant” because Google
`
`has contractual and/or property rights to use the cell towers to operate its business. Google also
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`ratifies the service locations through its coverage lookup service.
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`16
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`Source: https://fi.google.com/about/coverage/
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`42. With this coverage lookup service, Google advertises its ability to provide cell
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`coverage in this Judicial District and its selected cell towers in and near this District to provide
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`the advertised coverage (e.g., 2G, 3G, or 4G LTE), depending on the location in the District. See
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`https://fi.google.com/about/coverage/. Google is not indifferent to the location of its cell towers.
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`It “established” and “ratified” them where they are for a specific business purpose.
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`43.
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`Residents of this Judicial District also directly contract with and are billed by
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`Google for these services.
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`
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`17
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`
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`Source: https://fi.google.com/about/plan/
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`44.
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`Google also determines which cell tower a particular Google Fi customer will use
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`while within this Judicial District.
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`
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`Source: https://fi.google.com/about/faq/#coverage-3
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`Google Cloud Interconnect (GCI) and Direct Peering
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`45.
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`Google additionally services its customers in this Judicial District (and other
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`districts) through yet other facilities it has in this District. More specifically, Google’s equipment
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`is located in this District in Denton County, Texas at two facilities referred to as “Megaport.” At
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`the MegaPort facilities in this District, Google offers two services: Google Cloud Interconnect
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`(GCI) and Direct Peering.
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`46.
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`Google’s Cloud Interconnect (GCI) is a service from Google that allows
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`customers to connect to Google’s Cloud Platform directly, as opposed to, for example, over the
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`public network.
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`18
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`Source: https://cloud.google.com/interconnect/docs/concepts/partner-overview
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`19
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`GOOG-1012
`GOOGLE LLC v. RFCYBER CORP. / Page 19 of 73
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`47.
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`Google’s Direct Peering services allows its customers to exchange Internet traffic
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`between its customers’ networks and Google’s at one of its broad-reaching Edge network
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`locations, such as the one at Megaport.
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`
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`Source: https://cloud.google.com/interconnect/docs/how-to/direct-peering
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`48.
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`In establishing such a direct connection, Google provides the necessary physical
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`equipment at Megaport to enable GCI or Direct Peering connections. Google advertises only two
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`GCI facilities in Texas—the Equinix facility and the Megaport facility (the latter one located in
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`this Judicial District).
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`20
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`GOOG-1012
`GOOGLE LLC v. RFCYBER CORP. / Page 20 of 73
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`
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`Source: https://www.cloud.google.com/interconnect/docs/concepts/service-providers#by-
`location
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`49.
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`Clicking on the Megaport link from the screenshot of Google’s website in the
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`preceding paragraph directs a customer to the details of directly connecting to Google’s
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`equipment at the facility in this Judicial District to connect to Google’s GCI service.
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`Source: https://www.megaport.com/services/google-cloud-partner-interconnect/
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`50. More particularly, the Google-linked Megaport site explains how a Google
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`customer can use the Google Cloud Platform console to enable connection to the Google
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`equipment at the Megaport facility in this Judicial District.
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`21
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`Source: https://knowledgebase.megaport.com/cloud-connectivity/google-cloud/
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`51.
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`Both Google’s website and Megaport’s website advertise the peering service and
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`point a consumer to the website, www.peeringdb.com, for details. he peering DB website lists
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`Megaport Dallas as a Google peering facility.
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`
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`22
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`GOOG-1012
`GOOGLE LLC v. RFCYBER CORP. / Page 22 of 73
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`
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`Source: https://cloud.google.com/interconnect/docs/how‐to/direct‐peering; see also
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`https://cloud.google.com/cdn/docs/locations.
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`Source: https://knowledgebase.megaport.com/cloud-connectivity/google-cloud-platform-direct-
`peering/
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`
`
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`Source: https://www.peeringdb.com/net/433
`
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`52. Megaport’s website also confirms, in its “Looking Glass” tool, the presence of
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`
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`Google at its facility—(AS No. 15169).
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`23
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`GOOG-1012
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`Source: https://lg.megaport.com/
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`53.
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`Both of Megaport’s “Dallas” locations are in the Eastern District of Texas in
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`Denton County.26 The larger Megaport facility, the Carrollton facility, is located at 1649 West
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`Frankford Road, and is the largest of its kind in the State of Texas.27 The smaller Megaport
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`facility, the Lewisville facility, is located at 2501 S. State Highway 121.28
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`54.
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`The Google equipment at Megaport’s facilities which provides the GCI and
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`Direct Peering services for Google customers are fixed geographical locations. They are
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`“regular” and “established” because they operate in a “steady, uniform, orderly, and methodical
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`manner” and are sufficiently permanent. They are “of the defendant” because Google holds
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`contractual and/or property rights to use this space and to maintain this equipment. Google also
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`26 https://www.megaport.com/blog/cyrusone-brings-dallas-closer-cloud/.
`27 Id.
`28 Id.
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`24
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`GOOG-1012
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`
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`ratifies the equipment through advertising of the Megaport location as authorized to provide
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`these Google services.
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`Google Repair Centers and Warehouses in this Judicial District
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`55.
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`In addition to the Google presence described above, Google has multiple
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`authorized repair centers in the Eastern District of Texas. These repair centers are regular and
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`established places of business of Google.
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`56.
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`For example, the Flower Mound Facility, located at 700 Lakeside Parkway,
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`Flower Mound, Texas 75028, is a regular and established place of business of Google. The
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`Flower Mound Facility is owned by Communications Test Design, Inc. (“CTDI”) with whom
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`Google has entered into an Inbound Services Agreement (the “ISA”) on August 15, 2017.
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`Personalized Media Commn’s, LLC v. Google LLC, No. 2:19-cv-00090-JRG, Dkt. 291 at 3,
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`(E.D. Tex. July 16, 2020). Further, on May 15, 2018, Google and CTDI entered into Statement
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`of Work No. 463889 (the “SOW”) regarding the Flower Mound Facility. Id. Pursuant to the
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`SOW and in accordance with the ISA, “Google contracted with CTDI to refurbish, warehouse,
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`and repair ‘certain Google products such as . . . Pixel smartphones’ at the Flower Mound
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`Facility.” Id. at 3-4.
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`57.
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`Under the SOW, (1) “CTDI must repair, refurbish, and warehouse Google devices
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`at the Flower Mound Facility;” (2) “[a]ny change from this location must be agreed to in writing
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`by Google;” (3) “the SOW grants Google a specific and defined space within the Flower Mound
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`Facility called the ‘Google Secured Area’ where all repair, refurbishment, and warehousing
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`activities are to be conducted;” and (4) “Google further specifies that that Google Secured Area
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`must ‘have walls from floor to ceiling’ and ‘be fully separate from other operations.’” Id. at 4.
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`Further, “Google has a dedicated, physical space for its operations within the Flower Mound
`
`25
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`GOOG-1012
`GOOGLE LLC v. RFCYBER CORP. / Page 25 of 73
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`
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`Facility,” “Google has control over the Google Secured Area and has dictated the specifications
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`for the Google Secured Area,” “[o]nly Google devices can be stored, repaired, or refurbished in
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`the Google Secured Area,” and “the location of the Google Secured Area cannot be moved
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`outside of the Flower Mound Facility without the express written consent of Google.” Id.
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`58.
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`CDTI acts as Google’s agent, conducting Google’s business at the Flower Mound
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`Facility. Id. at 5. “Google controls and oversees virtually every aspect of how CTDI performs its
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`services, including how it receives, diagnoses, repairs, warehouses, packages, and ships the
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`Google devices.” Id. For example, the SOW “requires CTDI to ‘collect data and deliver reports
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`to Google’ for more than twenty different types