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Protecting Innovation – Moving Forward

With the second International Trade Commission (ITC) trial regarding Arista’s use of Cisco’s proprietary networking technology patents almost complete, now is a good time to provide an update.

As you will recall, Cisco filed copyright and patent infringement cases against Arista last December in the District Court in Northern California. One case, focused on 12 technology patents, remains “stayed” while the ITC trials involving the same patents are ongoing. The other District Court case, regarding Arista’s literal copying of Cisco’s command line interface (CLI) and two related patents, is moving forward. None of the patents in these cases cover technology that has been adopted as a standard. And all the patents were invented by people who worked at Cisco and then went to Arista, or by Cisco employees whose managers went to Arista.

Arista makes no secret out of its willful, intentional and on going use of Cisco’s proprietary networking technology. That’s why this litigation is necessary. For instance, why does Arista use over 500+ of Cisco’s multi-word CLI commands, when competitors like Alcatel Lucent, Brocade, HP and Juniper have only a fraction of that overlap in their own products?

To appreciate the brazenness of Arista’s behavior in this regard, and why the litigation is necessary, let’s listen to Arista’s own words. Here’s Ken Duda, Arista’s Chief Technology Officer and Senior Vice President of Software Engineering, and a former senior engineer at Cisco, in a public domain interview talking about Arista “slavishly” copying Cisco’s CLI.

Here’s where each case stands:

District Court Case (CLI and related patents)

This case, before Judge Beth Labson Freeman, is slated for trial in August 2016. Recently Arista moved to delay the start of the trial to 2017. The Judge held a conference on that issue, and will rule after briefing the question.

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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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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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Protecting Innovation

In the thirteen years I’ve been General Counsel of Cisco, I can count on one hand the number of times we’ve initiated suit against a competitor, supplier or customer.

It’s therefore only after thoughtful and serious consideration that we are today filing two lawsuits to stop Arista’s repeated and pervasive copying of key inventions in Cisco products. These suits cover key Cisco proprietary patented features and Cisco’s copyrighted materials.

(The patent lawsuit can be viewed here. The copyright lawsuit can be viewed here.)

Cisco’s $6 billion annual R&D expense, supported by over 25,000 engineers, has a proven track record of bringing innovation to our customers and partners around the world. Our success is built on using our innovation engine to lead in the marketplace. Our action today is based on the principle that to compete in technology, you need to innovate, not copy.

We have taken this action only after assuring ourselves of four key facts – all of which form the basis for legitimate intellectual property actions between competitors:

  • Arista incorporates features knowing that Cisco holds intellectual property rights related to those features, all of which are Cisco proprietary and none of which are industry standards
  • Arista intentionally markets those features to its customers as a basis for buying the products
  • Arista promotes its copying to convince investors to finance the company
  • Arista’s actions, if unstopped, will embolden others to seek to do the same

Patented Featured Copied

The heart of our action regards Arista’s deliberate inclusion in its products of 12 discrete and important Cisco features covered by 14 different U.S. patents. All of these features are being used by Cisco currently and in products we ship to our customers. None of the implementations are incorporated in industry standards. They were patented by individuals who worked for Cisco and are now at Arista, or who at Cisco worked with executives who are now at Arista. These Cisco-created features and implementations are incorporated by Arista in their entirety into Arista’s products.

  • System Database (“SysDB”) (Arista uses Cisco’s networking device implementation covered by Cisco Patent No. 7,162,537)
  • Zero-Touch Provisioning (“ZTP”) (Arista uses Cisco’s implementation covered by Cisco Patent No. 7,290,164)
  • On Board Failure Logging (“OBFL”) (Arista uses Cisco’s implementation covered by Cisco Patent No.7,340,597)
  • Control Plane Policing (“CoPP”) (Arista uses Cisco’s implementation covered by Cisco Patent No. 7,224,668)
  • Spanning Tree Loop Guard(Arista uses Cisco’s implementations covered by Cisco Patent Nos. 7,460,492 & 7,061,875 )
  • In-Service System Upgrades (“ISSU”) (Arista uses Cisco’s implementation described by Cisco Patent No. 8,356,296)
  • Virtual Port Channels (“vPC”) (Arista uses Cisco’s implementation covered by Cisco Patent No 8,051,211)
  • Access Control ListsImprovements (“ACL”) (Arista uses Cisco’s implementation covered by Cisco Patent Nos. 7,023,853 & 6,377,577)
  • Private Virtual Local Area Networks (“Private VLANs”) (Arista uses Cisco’s implementation covered by Cisco Patent Nos. 6,741,592 & 7,200,145)
  • Generic Command Interface (Arista uses Cisco’s implementation covered by Cisco Patent No. 7,047,526)
  • CLI Command Data Translation (Arista uses Cisco’s implementation covered by Cisco Patent No. 7,953,886)

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