Protecting Innovation: Update on ITC Cases

Earlier this week, Cisco received some welcome news. The U.S Patent and Trademark Office has rejected Arista’s second attempt to invalidate a Cisco patent that was asserted in the ‘945 International Trade Commission (ITC) investigation. This is also a patent where the ITC staff recommended a finding of infringement.

We are now looking forward to early March and the public release of detailed rulings in the first ITC case (‘944). We expect the release of two key documents:

• Final Determination – a 294-page document providing the detail and reasoning behind the Judge’s decision that Arista violated three Cisco patents.
• Recommended Determination of Remedy & Bonding – a 13-page document providing details of the exclusion order, and cease and desist order recommended by the Judge.

Both companies have had the opportunity to propose redactions to these detailed rulings that will protect confidential third party and company information. Our focus has been transparency, and we have requested the redaction of only five sentences of our confidential technical information from the entire 294-page ruling. We believe that the remaining information will help Arista’s customers, partners, and suppliers understand the true extent of their copying.

As I noted in my last blog, Arista’s time is running out. We expect the new documents to detail the categories of Arista products that will be prohibited from being imported into the United States. And in an important point for supply chain professionals, we also expect confirmation that the exclusion order bans the importation of both infringing products and the components required to make those products, as was indicated in the brief determination published on February 2. Arista could attempt to reconfigure their supply chain and seek a local contract manufacturer to make infringing products using imported components. But this strategy would be inducing a breach of the ITC order, and make their manufacturer a willful infringer of Cisco’s intellectual property. We will continue to take the action needed to protect our innovation.

So what happens next? The full Commission should decide whether to review some or all of the case by April 4. If they choose to review the ruling, their decision would be expected around June 2. After that comes a Presidential Review – a process that resulted in only one reversal in the last 30 years. If the original ruling is confirmed, August 2 is the likely date for implementation of the import ban.

Arista’s time and available options are fast running out. We call on them to remove their infringing products from the market, or submit their claimed workarounds for ITC approval.

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