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Protecting Innovation: Update on District Court and ITC Actions

Our legal action to stop Arista’s copying and use of Cisco’s intellectual property is proceeding according to schedule. With a number of important procedural steps about to take place, we feel now is a good time to provide an update.

Last December we brought two actions in the United States District Court for the Northern District of California. All of the related patents cover features that were invented by individuals who worked for Cisco and who are now at Arista, or by individuals at Cisco who worked with executives who are now at Arista.

District Court: Networking Features Case

  • This case will be overseen by Judge White in Oakland, and relates to Arista’s copying and infringement of key features covered by 12 Cisco patents.
  • Because the case addresses many areas being covered in the International Trade Commission (ITC), it has been “stayed” or put on hold pending resolution in the ITC. Cisco anticipated and consented to the stay requested by Arista to ensure efforts are not duplicated.
  • Much of the discovery completed as part of the ITC action will be directly applicable when this case proceeds to trial.

District Court: Operating System and Interface Features Case

  • This case will be overseen by Judge Freeman in San Jose, and relates to Arista’s use of Cisco’s proprietary and unique interface for which Cisco owns copyrights and two patents.
  • The trial is scheduled to begin on August 1, 2016.
  • After Cisco brought this action, Arista introduced its EOS+ product, which they claim added new features and functionality related to the interface. Because Arista knew of our action and EOS+ adds new ways to use Cisco technology, we amended our filing to demand extra penalties for “willfulness.”
  • Judge Freeman recently asked Cisco to further amend our complaint to make clearer that EOS+ was a new product. We submitted a second amended complaint as Judge Freeman requested and Arista did not move to dismiss its revised allegations about EOS+. Despite recent reports describing this as a setback for Cisco, all of our claims, including willfulness, will be heard by the Court as we proceed to trial.

In order to expedite resolution of these matters, Cisco requested that the International Trade Commission in Washington, D.C. commence two investigations into Arista’s infringement in importing products into the United States. The ITC typically resolves patent cases more quickly than the district courts, and has the power to block the importation of products that infringe US intellectual property. This will allow us to stop Arista from importing products based on copied technology, which are today manufactured abroad, into the US.

ITC Investigation: ‘944 Case

  • Key Dates:
    • September 9, 2015 – Hearing begins this week.
    • January 27, 2016 – Final Initial Determination, subject to review by the full ITC. May include an “exclusion order” if infringement is found.
    • May 27, 2016 – Target date for completion of investigation and issuance of final determination, subject to a 60-day Presidential Review if infringement is found.
  • This investigation is being held before Administrative Law Judge Shaw, who has standing rules to streamline cases by limiting the number of asserted patents and claims. To comply with these routine procedures, Cisco plans to reduce the number of patents pursued in this investigation.
  • The decision to drop one or more patents covering overlapping technologies will be made with the benefit of discovery, knowing that they can and will be pursued in the District Court networking features case.

ITC Investigation: ‘945 Case

  • Key Dates:
    • November 9, 2015 – Hearing begins this week.
    • April 26, 2016 – Final Initial Determination, subject to review by the full ITC. May include an “exclusion order” if infringement is found.
    • August 26, 2016 – Target date for completion of investigation and issuance of final determination, subject to a 60-day Presidential Review if infringement is found.
  • This investigation was originally assigned to Administrative Law Judge Pender, who held a claim construction hearing in June to determine the definition of 17 terms (out of hundreds in the patents) to be used at hearing.
  • We now look forward to having our claims heard before Administrative Law Judge McNamara.

We will continue to provide updates on any significant developments.

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Hey, it was a joke. No need for handcuffs.

Last week it was reported in the media that two British tourists were detained at Los Angeles International Airport due to the threatening tone of messages on Twitter (“tweets”), as one of the two travelers had said that they were going to “destroy America” on their holiday. It turns out that either the U.S. Department of Homeland Security (DHS) noticed those tweets through their efforts to monitor social media, or, as has been suggested more recently, someone explicitly reported the tweets to DHS as a prank. The legal ramifications of this event are worthy of examination when we consider that this event contains elements of language (slang), location (whose laws apply based on where the alleged events took place), and intent — particularly if the prank allegation turns out to be true. Read More »

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Silicon Valley Innovation is Built Around Employee Mobility

In my last blog, I wrote about HP’s disturbing pattern of suing non-California employees under ‘non compete’ clauses, often imposed  years after employment began.  Apparently it’s relatively recently that HP decided to abandon its Silicon Valley roots and tie up its  non-California employees in legal knots.  HP is in fact the only large Silicon Valley-based company to have two classes of employees and try to impose mobility restrictions on those who live outside California.  HP’s efforts have gone so far as to sue an employee who took a buyout after having his salary cut, and one who didn’t even work in an area related to HP’s products that compete with Cisco’s.

Two recent actions since that blog posting are stunning.   First, HP renewed legal action in Texas, where one of the employees used to live, trying to get a judge there to schedule a court date on a day’s notice and to apply Texas law even though the California judge in the case is going to hold a hearing, as is certainly appropriate, to verify that the employee has in fact moved to California. (Yes, he came to work for Cisco after he arrived in California, rented an apartment, got a drivers license, etc.) Once again the Texas court refused to intervene, and in fact effectively “stayed” HP’s legal actions indefinitely. HP also tried in Texas to raise another bar to employee freedom, claiming that the employee would ‘inevitably’ use HP’s trade secrets to do his job at Cisco, and therefore should be barred from continuing his new job. Just as California law bars enforcement of non-compete clauses, California courts won’t recognize this doctrine either, seeing it for what it is — an effort to impose de facto non competition clauses.

Read More »

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