Protecting Innovation: Update on ITC Enforcement Action

UPDATE (April 7, 2017): The U.S. CBP agency today decided to allow importation of Arista’s redesigned products into the U.S. while the ITC enforcement proceedings for case ‘944 are underway. The decision was issued after the agency met with counsel for both parties in late February, where our outside counsel expressed concerns about the Arista redesign. We have always sought a detailed and open process, and appreciate that CBP has afforded us this opportunity for increased transparency.

Earlier this week, we presented evidence and testimony to the ITC judge in this case, and await his determination – along with that of the Commission – whether Arista’s redesign continues to infringe. It has always been our goal in these actions for Arista to stop using Cisco’s proprietary technologies, and our enforcement proceedings are a key step in determining whether Arista’s redesigned products use IP copied from Cisco.

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Original (April 4, 2017): Opening statements for the ITC ‘944 investigation enforcement hearing began this afternoon, and the full evidentiary hearing should be complete tomorrow. In the ITC’s final decision last summer, Arista was found to infringe three Cisco patents, including our SysDB patent. While Arista claims to have redesigned its products to avoid Cisco’s SysDB patent, they declined to present the redesign to the Commission for review. The ITC now will determine in the enforcement proceeding whether Arista’s redesign continues to infringe Cisco’s SysDB patent and, if so, what the penalty should be for the ongoing infringement.

We appreciate the staff attorney’s positions presented in opening statements today, which highlight issues to be considered in the enforcement proceeding. Our goal all along has been to stop Arista from using IP copied from Cisco in its products. We believe that the changes made in Arista’s redesign were insignificant, and that their switches continue to rely on the teaching of Cisco’s patent for the operation of their switches. We intend to present evidence to that effect in the enforcement proceeding.

We look forward to the hearing, which is our first opportunity to present live testimony regarding Arista’s redesign before the Administrative Law Judge who will recommend a finding to the full Commission. The staff attorney noted that in the event a violation is found, that Arista should be subject to a “substantial penalty.”  The ALJ is expected to issue his decision on June 20, 2017, after which the Commission is expected to issue its final decision on September 20, 2017.

In the meantime, Customs and Border Protection (CBP) met with counsel from both parties in February, during which Cisco expressed our concerns about the Arista redesign. CBP is expected to issue a ruling on whether Arista should be allowed to import its redesigned product while the ITC enforcement proceedings are underway, but will be bound by the final ITC decision in September.

If the ITC finds that Arista’s redesign still infringes after considering all the evidence, CBP will enforce the import ban of Arista’s products, and the ITC may issue substantial penalties for Arista’s continued sale of infringing products after the ITC cease and desist order went into effect.

It has always been our goal in these actions for Arista to stop using Cisco’s IP and the enforcement proceedings are consistent with that goal.