I can’t pretend not to be disappointed that a jury in federal court, having found that Arista copied Cisco’s user interfaces and that the copying was not justified by the fair use doctrine, applied the little known principle of “scènes à faire” to deny Cisco relief for Arista’s action. In laymen’s terms, justification by applying scènes à faire means the jury excused Arista’s copying because they believe that “external factors” dictated the selection and arrangement of some infringed features. We believe they misapplied, or misunderstood, this narrow doctrine developed to make sure copyright infringement does not extend to using commonplace elements from literary works such as a plot device, a character or a setting.
We were pleased that yet a third tribunal (after two separate International Trade Commission judges’ findings) has found that Arista intentionally copied Cisco, rebutting Arista’s claims to have developed their products from “a clean sheet of paper”. We will look to Judge Freeman to determine whether there was sufficient evidence to warrant the conclusion reached by the jury, as well as other grounds for setting aside the trial result.
Arista copied despite the fact that other competitors have developed user interfaces in a wide variety of ways that do not copy. Cisco’s user interface is well-known and successful, and while it has often been referred to as an “industry standard” – meaning a popular benchmark – none of Cisco’s technology in this case has been incorporated in any actual industry standard; in fact, no CLI standards body actually exists.
Our goal has always been to protect technological innovation, and stop Arista from using our copyrighted and patented technology. In the two separate cases before the ITC we’ve made significant progress toward that end. We are pleased the ITC has made a final ruling of infringement against Arista regarding three Cisco patents in the case known as ‘944, and a judge at the ITC has made a finding of infringement on two additional patents in the ‘945 case. It is in some ways ironic that the jury in San Jose heard testimony from Arista executives about their desire to respect others’ IP rights, but did not have the opportunity to hear rebuttals to those claims of respecting IP rights based on Arista’s own proven actions.
Cisco believes in fair competition as well as employee mobility, especially given that both are core elements of the innovation that is necessary in our industry. And we also believe in protecting the hard work of our employees, and the significant investments made to develop great products. This too, is critical for our industry. It motivates inventors to create the new technology that will meet the future needs. It encourages investors to have confidence in our company and its future. Cisco will continue its position of not being a litigious company. We prefer to invest in our people and products. But we will defend both in situations of egregious copying, like we’ve seen in our cases against Arista.