Protecting Innovation: ITC Declines to Suspend Ruling; Orders Remain In Effect

The International Trade Commission yesterday sent a strong message to Arista that its “corporate culture of copying”, as the ITC has put it, must stop. By rejecting Arista’s efforts to delay orders that Arista stop importing and selling infringing products in the U.S., it reinforced the protection of intellectual property rights.

On May 4, the Commission had found that Arista’s entire product line infringed two Cisco patents covering key networking technologies, related to access controls and network security. The ITC imposed a “limited exclusion order”, or ban, on the import of all infringing Arista products from its overseas manufacturing sites into the U.S., and a cease and desist order barring Arista from selling those products in the U.S., whether manufactured abroad or assembled in the U.S. from components that have been imported. Those orders went into effect on July 4 at the end of the 60-day “Presidential Review Period”. And yesterday, the ITC refused Arista’s attempt to suspend the orders pending Cisco’s appeal to the Federal Circuit Court of Appeals of a Patent and Trademark Office finding that the two patents in this current case are invalid; the ITC, in contrast, has ruled that the two patents are indeed valid.

Several noteworthy points deserve highlighting:

Arista on Wednesday had made a last-minute plea to the ITC again urging the ITC to suspend its orders, augmenting arguments it had submitted earlier. Because the filing was marked confidential and provided to us only with extensive redactions, we don’t know exactly what claims Arista advanced as to the impact of the ITC orders. Arista’s cloak of secrecy suggests Arista either believes it will be called out for making exaggerated claims, or does not want its customers and investors to know what it believes will happen now that it is required to respect Cisco’s intellectual property rights.

We look forward to Federal Circuit review of the Patent Office’s invalidity rulings on the two patents. In the appeal, we will address Arista’s blocking of the Patent Office from access to records of the ITC trial related to the novel and non-obvious nature of Cisco’s patents. Arista’s tactics effectively made it impossible for the Patent Office to review relevant evidence in its validity determination. We will also demonstrate that the Patent Office should have followed the ITC’s lead and rejected Arista’s effort to invalidate a patent that its own founder and board chair, Andreas Bechtolsheim, had sworn was valid when he submitted the patent application as a Cisco inventor. Under the legal doctrine known as “assignor estoppel”, inventors are prohibited from undermining their own inventions when it is convenient to do so. That important equitable doctrine, which protects the integrity of the patent system, is enforced by the courts just as it was by the ITC in this case, and should have been applied by the Patent Office.

We have had one goal: for Arista to stop selling products using Cisco’s intellectual property. Arista has used every stratagem to delay the case and avoid taking that step. To publicly demonstrate the willful nature of Arista’s actions, we have only asserted in these cases patents which were invented at Cisco by engineers who either went to work for Arista or who at the time of invention or patenting worked at Cisco with individuals who later became Arista executives. We hope Arista’s board will now stand up and demand that the company cease use of all misappropriated technology.

Consistent with its actions to date, we expect Arista will now ask the Federal Circuit to intervene where the ITC and the United States Trade Representative have refused to do so, to allow them to continue infringing Cisco patents pending Cisco’s appeal of the Patent Office invalidity findings. Those patents remain on the books unless the Federal Circuit rejects the ITC’s validity and infringement findings and upholds the PTO’s rulings, a point well understood by the ITC in its rejection yesterday of Arista’s plea for delay.

We suggest that instead, Arista simply stop using intellectual property that they knowingly misappropriated from Cisco.