Protecting Innovation: Commission Upholds Judge’s Ruling in ITC ‘945 Investigation

This afternoon the International Trade Commission ruled that Arista switches infringe two additional Cisco patents, covering addressable memory and control plane policing, which are core technologies in network switching. By confirming Administrative Law Judge McNamara’s Initial Determination, the Commission brings the total confirmed Arista patent violations to five. Today’s ruling in the “945 Investigation” concludes Commission review of the two cases brought by Cisco in December 2014.

The Commission’s decision is the latest of several findings that Arista has intentionally and unlawfully copied Cisco’s proprietary technology.  As the Commission put it in its less-redacted version of the‘944 ruling, which was made public only two weeks ago, “Arista’s behavior evinces a corporate culture of copying,” and finding that at best, Arista was “willfully blind” to Cisco’s intellectual property. It is this culture of copying that Cisco has aimed at in its legal action.

Today’s ITC ruling also included a recommended remedy, which consists of an import ban and a cease and desist order, and that Arista pay a 5% bond on covered products sold or imported during the presidential review period described below. These affect all Arista switches. The burden is on Arista to demonstrate that any changes it makes to its products will be sufficient to avoid further infringement.

The Commission’s ruling in particular found:

violation of U.S. Patent 6,377,577 (“Access Control List Processing In Hardware”)

violation of U.S. Patent 7,224,668 (“Control Plane Security and Traffic Flow Management”)

Both of these patents cover core Cisco networking technology. The ‘577 patent, a named inventor of which is Arista chairman and founder, Andy Bechtolsheim, who presumably was aware of his own invention when designing Arista products, is a fundamental Cisco invention that improves processing in network devices. The ‘668 patent covers a core Cisco invention for improving network device security and helps, among other things, prevent denial of service attacks. Like our other patents that Arista was found to infringe, these inventions were developed by Cisco employees and remain critical to the cutting-edge products that we sell.

We thank Judge McNamara and the ITC for their diligence and review of the evidence that led to this decision. Soon, we expect the full rationale and background for the findings in the ‘945 case to be published, and hope that Arista does not again attempt to shroud non-technical findings about its unlawful conduct from the public.

Now begins the 60-day presidential review period for this case, which expires on July 4, 2017. At that time, barring a very unlikely intervention from the U.S. Trade Representative on behalf of the President, the new ITC orders will go into effect – banning the import, sale and distribution of Arista products in the U.S.

Finally, we note that Arista has requested review of a number of Cisco’s patents (including the ‘577 and ‘668 patents) by the U.S. Patent and Trademark Office (USPTO). The USPTO has conducted that review after preliminarily finding that some of the claims of those patents may be invalid. The ITC refused to allow Arista to invalidate the TCAM patent since Bechtolsheim had sworn to the validity of his invention. We expect decisions in early June. The USPTO has rejected Arista’s request to review all claims Arista was found to infringe in the ‘944 Investigation.

A Cisco action to enforce the exclusion order issued in the ‘944 investigation due to Arista infringement of Cisco’s ‘537 patent, covering “SysDb”, is pending before the Commission, with a decision on that action also due in June. Arista is allowed to import its products in the meantime as the result of a Customs and Border Protection ruling which found that Arista’s engineering changes avoid the ‘537 patent; CBP will be bound by the ITC’s final decision in September.

Cisco’s goal remains to force Arista to cease the intentional and pervasive infringement that comes from its “culture of copying.”