Late yesterday, the U.S. Customs and Border Protection (CBP) agency revoked its November 2016 finding that Arista’s supposedly “redesigned” products don’t infringe a key Cisco patent. You can read CBP’s letter of revocation here. The revocation covers all Arista products. This means that Arista has lost the authorization to import or continue selling its products in the U.S., or to import components to build those products.
Arista has previously stated that it will fully comply with the ITC’s orders on infringing products. We therefore call on Arista to 1) stop importing its products or their components (we hope CBP will now commence seizing any products or components Arista seeks to import); 2) stop selling its products imported or manufactured under the authority of the now-revoked November 18 ruling; and 3) recall any products sold in the United States since the ITC exclusion order went into effect in August 2016. All products sold since the ITC orders went into effect in August are infringing and continue to be subject to the ITC’s orders – our view is that the “redesign” is a sham. If the ITC concurs that the “redesign” does not avoid the patent, our enforcement action that is pending before the ITC can result in Arista’s forfeiture of all revenue from the sale of products since last August.
As noted in earlier posts, Arista decided last year not to submit its purported redesign to the ITC where each side could present evidence, instead somehow believing that CBP would approve the redesign without a full inquiry. The revocation of the initial ruling that was in Arista’s favor shows that their bet that CBP would not do a full review did not pay off for Arista, a fact that other infringers should note. Arista’s customers have been left bearing the risk of a potential dead-end deployment.
Yesterday’s revocation also brings into sharp relief the breadth of the court and regulatory findings that Arista has simply not told the truth in claiming its products were developed from a “clean sheet of paper”. For instance, even in deciding not to impose damages on Arista, a federal court jury in San Jose found in December that Arista had in fact copied Cisco’s user interface. And a few weeks ago, in a separate ITC case, a judge found Arista infringed two additional Cisco patents. As in the earlier ITC case, where Arista demanded massive redactions before publication of the ruling, Arista in this case is also seeking substantial redactions, denying customers and investors the chance to see the full story of Arista’s pervasive culture of copying. We hope that investors and customers ask Arista to allow the complete rulings to be made public, and that the proceedings ahead provide the transparency needed for them to make informed decisions about the risks they run in doing business with a company built on misappropriation.
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