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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Tags: innovation, intellectual property, litigation
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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Tags: innovation, intellectual property, litigation
Last week, I wrote about statements made by Charles Ding, Huawei’s Senior Vice President and Chief Representative in the U.S., Mr. Ding explained the 2003-2004 intellectual property litigation between Cisco and Huawei as follows: “Huawei provided our source code of our products to Cisco for review and the results were that there was not any infringement found and in the end Cisco withdrew the case . . . the source code of the issues was actually from a 3rd party partner that was already available and open on the internet.”
In my blog, I let Huawei and Mr. Ding know that Cisco would waive any confidentiality provisions from that litigation so the world could learn what really happened and suggested they publish the expert’s report from the litigation. Huawei and Mr. Ding have so far ignored my offer. Under the agreement that resolved the litigation, we are entitled to act on our own, so we now do so.
Two things are clear about the Cisco – Huawei dispute:
- The litigation was between two private companies, not between governments. It’s not about the US or China and we respect the efforts the Chinese government is making to increase intellectual property protection. Rather, this dispute involved a very simple claim that one company used the other’s trade secrets and copyrighted materials without permission.
- Unlike the smartphone patent battles, where parties try to protect and grow their market share by suing each other over broad patents where no direct copying is required, let alone even knowledge that a patent exists, this litigation involved allegations by Cisco of direct, verbatim copying of our source code, to say nothing of our command line interface, our help screens, our copyrighted manuals and other elements of our products.
The agreement that ended that lawsuit allows either party to make a reasonable response to improper or impermissible statements by the other. Mr. Ding’s statements of two weeks ago indeed misstate the facts and therefore merit a direct, factually accurate and proportionate response. Rather than providing Cisco’s interpretation of the facts, we think it better simply to set forth the facts themselves. To that end, the following are verbatim excerpts from the Neutral Expert’s Final Source Code Report, dated June 15, 2004:
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Tags: Cisco, huawei, intellectual property, litigation
Recently, Mr. Charles Ding, Huawei Corporate Senior Vice President and Chief Representative in the United States spoke publicly about Huawei’s use of Cisco’s intellectual property.
While Huawei’s statements were in a context unrelated to the competitive relationship that Cisco and Huawei have, they nonetheless bear directly on issues that anyone concerned about fair competition in the networking industry ought to be thinking about. Mr. Ding contended that Cisco’s litigation with Huawei in 2003 and 2004 was unjustified. This is the litigation in which Cisco claimed unauthorized use of Cisco’s source code in Huawei products.
Mr. Ding said: “If I remember well, that happened in 2003, when Cisco sued Huawei for intellectual property rights infringement …at that time, Huawei provided our source code of our products to Cisco for review and the results were that there was not any infringement found and in the end Cisco withdrew the case…this is the basic situation of that case.”
When asked, “didn’t Huawei admit that Cisco’s code was in your equipment?”, Mr. Ding stated, “As specifically to the source code, the source code of the issues was actually from a 3rd party partner that was already available and open on the internet.”
In fact, within a few months of filing suit, Cisco obtained a worldwide injunction against sale by Huawei of products including our code for a Cisco-proprietary routing protocol called EIGRP, and Huawei publicly admitted that the code had been used in their products and they pledged to stop. They even said they had removed that code from the products voluntarily prior to the judge’s action. After the injunction was issued, Huawei agreed to an expert review of the balance of its code, above and beyond the EIGRP module. More than a year later, the litigation was indeed concluded. What happened in the interim, how many reports a court appointed expert released, and what was done as a consequence, were all covered by a confidentiality agreement.
Our legal advisers tell us that given Mr. Ding’s statements, we would be justified in releasing the full report. To facilitate the understanding about what actually happened in the litigation and allow Huawei to itself clear up any confusion, we waive any confidentiality requirement for the report and suggest that Huawei itself have the expert’s complete final report put into the public domain. Fair competition, indeed, requires transparency of business practices and a respect for intellectual property rights.
Tags: Cisco, general counsel, huawei, litigation, mark chandler
Like many in the tech industry, I closely followed the recent Apple-Samsung litigation and believe that the case will have meaningful implications for years to come. What I find most interesting is not the jury’s decision – which could have gone either way for purposes of this commentary – but the underlying premise of this case, which is exactly the type of issue our patent system was designed to handle. I can even picture Thomas Jefferson, our nation’s first Commissioner of Patents, sitting in his study at Monticello, reading about the case on his iPhone and texting a note to Judge Koh congratulating her for her conduct of the case.
This case involved two companies with competing products, and each believed they had intellectual property that should exclude the other from participating within their marketplace. More importantly however, at least some of the patents being litigated were essential to the products’ design. In other words, they were inherently the reason that consumers would want to buy those specific products. This important concept – that true innovation must be tied to consumer preference – played out in a court of law, in front of a jury, and in a way that will have great significance for how the marketplace treats companies that innovate. Unfortunately, this is a far cry from a majority of patent litigation we see in our system today.
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Tags: Apple, general counsel, litigation, patent, Patent Trade Office, samsung