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.
Given that several of Arista’s leaders – beyond Mr. Duda – have publicly acknowledged the importance of Cisco’s IP to their products’ operation, we’re not surprised they are requesting delays. Based on new discovery requests we’ve received, and the addition of lawyers specializing in standards, they may soon start arguing that they needed to copy the commands because some are supposedly used to operate standardized features. This argument won’t last long, given the way other competitors have created their own CLIs that also control standardized features, and that Arista’s products also offer an interface not copied from Cisco.
We see no reason to delay access to justice in this case. We will strenuously argue against delay and urge that the trial moves forward as originally planned. A company that purposely steals another’s IP in order to win market share should not be able use delay to continue shipping products and profiting.
International Trade Commission
ITC Investigation ‘944: The trial was held in September, with a ruling expected by the Judge in January 2016. The ITC staff attorney recommended a finding of infringement for three of the five patents that went to trial in that case, covering key architectural features such as Arista’s approach to system databases, which infringes Cisco’s patented SysDB approach.
ITC Investigation ‘945: This trial is currently underway and is expected to conclude this week. The Judge will issue her decision in March 2016. The ITC staff attorney has recommended a finding of infringement for two of the six patents in this case. When the Judge issues her interpretation of various disputed terms in the patents, we hope to have even stronger grounds for finding infringement of additional patents. The patents cover key technology related to high-speed access control and the way addressable memory is used in Arista products.
Arista Challenges to Validity of Cisco Patents
For the two patents in the ‘945 ITC trial where the staff has recommended a finding of infringement, Arista filed two separate “inter partes review”, or “IPR”, petitions at the Patent and Trademark Office. The PTO rejected both of Arista’s challenges to one of the patents, and rejected the first of Arista’s petitions regarding the second patent. A decision on whether to institute proceedings on Arista’s second petition on the second patent is due in February; while we expect that challenge to also be rejected, if proceedings are instituted we will vigorously defend the validity of the patent, which the ITC staff found to be valid as well as infringed. The ITC staff attorneys have also supported the view that Arista cannot challenge the validity of Cisco patents that were invented by key Arista employees when they were at Cisco, since those inventors swore to the validity of the patents when the patent applications were filed.
Arista did not file IPR challenges to the three patents for which an infringement recommendation was made in the first ITC.
We anticipate a lot of attempts at delay and distraction in the months to come. Arista told its investors last week that they had developed “workarounds” to the fundamental Cisco technology, embedded deep in the architecture of Arista’s products. If they’ve done that, we don’t know why they are still shipping infringing products.
We promise you this: despite all the smokescreens and distractions, we will not be distracted from our original goal: stopping Arista from using Cisco’s proprietary technology in its products.