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Oracle v Google: Implications of the SCOTUS decision

We’ve promised to provide regular updates about important events related to our litigation to stop Arista’s wrongful copying of Cisco’s copyrighted and patented intellectual property. An action by the Supreme Court of the United States this week has the potential to change the landscape for our US District Court action related to our CLI technology.

In December 2014, we took action against Arista’s verbatim copying of portions of our user manuals and over 500 of our multi-word commands in our command line interface (CLI). At the time, some speculated that the CLI copying might be justified under principles that Google had asserted regarding its copying of the Sun/Oracle code for Java Application Programming Interfaces (APIs), and Arista’s lawyers were relying on that argument in court. At that time, Google was appealing the Federal Circuit’s decision (holding that API software code is copyrightable) with the Supreme Court of the United States.

Some felt that if the Supreme Court took up the Oracle/Google case and reversed Oracle’s Federal Circuit win, it might somehow apply to justify Arista’s brazen copying. It’s worth noting that Arista also offers a CLI that they created themselves (though it’s not used by many of their customers), and the only justification in their public statements prior to the litigation was that their users preferred Cisco’s CLI. With that in mind, we’ve always felt that Arista’s copying of large portions of the Cisco CLI could be distinguished from Google’s argument in that there was no alternative to the API code to create Java-compatible applications.

However, the Supreme Court decision this week, to decline to review Oracle’s win in the Federal Circuit, effectively removed another argument that Arista could make to the Court.

Once again, we call on Arista to stop their blatant copying, respect others’ intellectual property rights, and immediately disable use of the copied Cisco CLI. We are using all available processes to resolve this matter, and will undertake all necessary steps to expedite the District Court’s review of our claims and ask the court to instruct Arista to end use of their products that include the copied CLI.

Note that this decision affects only the copyright claims in the District Court.  Our patent claims in the District Court and our International Trade Commission action about Arista’s infringement of twelve Cisco patents continues apace. We are confident in our case and expect positive rulings to be issued by next May.

 

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Protecting Innovation: Update on Status of Arista Litigation

In our last posting, we referenced Arista’s effort to consolidate the two International Trade Commission cases we had filed. Arista acknowledged that their move would have the effect of delaying the resolution of the cases for up to six months. With that effort rejected by the Commission, today Arista moved to formally delay the target date for completion of the case by six months. These cases involve the pervasive copying of Cisco’s intellectual property (see my original blog on the ITC case here). We want to be clear: these cases should progress quickly and we will oppose any delay. We expect the ITC to rule soon on that motion, and hope they will reject delay.

These cases in the ITC are separate from the two District Court cases which we filed on December 5, one of which was stayed by mutual agreement earlier today pending the outcome of the ITC cases. Earlier today, a Bloomberg News article reported that, “Arista Networks Wins Ruling Putting Cisco Patent Case on Hold”, which Barron’s “Tech Trader Daily” picked up as “Favorable Ruling Against Cisco, Case on Hold, Says Bloomberg.”  The Bloomberg article correctly reported that the “case is delayed until U.S. International Trade Commission completes its investigations.” Both outlets have since clarified the reporting (see: Cisco Says Bloomberg Story in Error, Arista Stay of Hearing is Procedural Detail).

What the initial article didn’t mention was that the stay was pre-agreed by both Cisco and Arista. This was effectively automatic after the ITC cases against Arista were filed on December 21.  As a matter of law, a stay of District Court litigation is allowed to avoid duplicative proceedings when an ITC action is also pending, an approach we strongly favor to help reduce court costs. In fact, our February 4 ITC filing we publicly stated that the “District Court action will be stayed without opposition from Cisco”.

These are complicated proceedings and those without a legal background may have trouble following all the procedural and major rulings. Some of today’s confusion about the District Court stay might have been avoided if we’d drawn more attention to our non-opposition filing, which is why we are committed to updating interested parties on this case, as needed. I’ll continue to blog updates on this important case, and you can follow me for updates at @ChandlerCisco.

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Innovation Moves Quickly; Arista Should Not Delay ITC Case

We previously committed to providing important updates on our legal action over Arista’s pervasive copying and misappropriation of Cisco intellectual property. Today, an International Trade Commission (ITC) Administrative Law Judge issued an order rejecting Arista’s request to consolidate Cisco’s two ITC complaints.

Arista’s request had itself included an acknowledgement that consolidation could cause a six month delay in the proceedings. We felt this ran counter to the language of the Commission’s own Rule 201.7(a) permitting consolidation “in order to expedite.”

We are pleased that the Administrative Law Judge promptly rejected this request, and with it the argument that Cisco was somehow looking to “game the system.” Our filing of separate complaints was consistent with ITC practices, and focused squarely on delivering a speedy and lowest cost resolution for all involved.

As highlighted in the January 22 update to our blog (Protecting Innovation: International Trade Commission Commences Investigation), Arista’s initial legal arguments had focused on attempting to avoid enforcement of Cisco’s rights by utilizing the “public interest” exemption, an approach the Commission chose not to refer for action. This latest decision is a rejection of Arista’s legal maneuvering to delay the outcome. With the discovery process now underway, we are looking forward to Arista addressing the complaints directly.

We now believe that Arista intends to file a motion seeking a delayed 22 month target date in one of the ITC cases. We hope that in light of today’s ruling, they will reconsider this motion so we can focus on the prompt resolution of the case.

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Protecting Innovation: International Trade Commission Commences Investigation

A short while ago, the International Trade Commission (ITC) took an important first step toward the speedy review and action we requested regarding Arista’s widespread infringement of Cisco’s patented networking technology. We welcome the ITC’s initial action in this case, and by voting to commence an investigation into our complaints regarding Arista’s use of Cisco’s patented technology in its products, the ITC has started down a road that should lead to resolution within a matter of months. Trials are generally completed within 9 to 12 months after an investigation is instituted. We are committed to driving fast action regarding Arista’s illicit copying. Our complaints to the ITC detail Arista’s inclusion in its products of a wide array of important Cisco features covered by 12 different U.S. patents. All of these patented technologies are core technologies being used in products we currently ship to our customers. And none of these Cisco proprietary implementations are part of industry standards. You can read our complaints here and here.

We look forward to the opening of the discovery process so that we can further document the widespread infringement, which Arista itself has advertised as a key selling point of their products (see my blog when we brought our lawsuits on December 5).

As the ITC’s decision to commence investigations was just confirmed, we will evaluate the documents that we expect to receive, and provide updates in the coming days.

Further Update: 22 January 2015

Interestingly, the ITC apparently did not elect to undertake further investigation into Arista’s request that the trial judge consider whether their products are so vital to the national interest that they should be allowed to continue to be sold, even if they infringe (See Arista’s Public Interest Statement). We were surprised that Arista even asked. We had expected them to simply deny infringement. Instead, they claimed, “Many others have used, and continue to use, technologies Cisco accuses Arista of using without any complaint from Cisco” as a justification for infringement, and claiming that “Arista’s products serve critical roles in U.S. commerce and security [and] [t]he issuance of any exclusion order would raise public health, safety, or welfare concerns.” As laid out in detail in the December 5 blog, Arista is unique in the scope of its copying of Cisco technology. That’s why this is the first patent lawsuit we’ve initiated in eleven years. Arista has many competitors who do not copy the Cisco technologies Arista chose to incorporate in their products.

Arista has it backwards. There is a strong public interest, long recognized by the ITC, in protecting innovation and excluding the importation and sale of infringing products. That’s why the ITC exists. So we are pleased it looks like the trials will focus on the merits of our claims, without spending resources on Arista’s argument that the public has an interest in letting it infringe Cisco’s patents.

 

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Protecting Innovation: Cisco Seeks Injunctive Relief at ITC

I blogged in an earlier posting about steps we are taking against Arista’s widespread and intentional use of Cisco’s cutting-edge and differentiating technology in their products. I want to provide an update about steps we’ve taken, as promised when we filed the initial action, to expedite what can be a long drawn out process.

Today, we have formally asked the US International Trade Commission for an injunction (in ITC parlance, an “exclusion order”) blocking Arista from importing and selling products that use Cisco’s patented technologies in the United States. The ITC is an independent agency with broad investigative responsibilities to protect innovators against importation of infringing products. As is typically the case with ITC actions, a consultative process with the ITC preceded these filings, a process we initiated when we filed our legal actions two weeks ago. Our ITC actions cover the same twelve patents we asserted in one of our district court cases. Our ITC actions are consistent with our commitment to do everything possible to expedite review of Arista’s illicit copying. The ITC generally acts more quickly than typically occurs in district court cases, which will help us in our efforts to obtain orders to stop Arista’s unlawful actions as quickly as possible.

One important point in both of these actions (the District Court filing, and now the ITC): our suit is only against Arista and not against any customer. Any suggestion that we will put our customers in the middle of this is not true. Arista’s customers are the victims of Arista’s infringement and copying.

We have no interest in making this a long, drawn out affair. We will move expeditiously to vindicate the principle that to succeed in technology, you need to innovate, not copy. That is why we filed our actions today in the ITC.

 

(Editor’s note: you can read complaint #1 here; complaint #2 is here)

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