Protecting Innovation: ITC Enforcement Action Initial Determination

We received word today that an ITC judge has issued a decision that Arista’s redesigned products do not continue to use the Cisco “SysDB” patented technology, which Arista was found to have infringed in the ITC’s “944 Investigation”.  The judge’s order is subject to review by the full Commission, and we plan to request a review of this ruling. Ultimately, we want Arista to stop using our IP, and if they have indeed redesigned to avoid the involved Cisco patent, we would welcome it as progress in the right direction.

We appreciate diligence from Judge Shaw and the ITC staff in reviewing the evidence.

What’s Next: If the full Commission agrees to review the judge’s ruling, they are expected to issue a Final Determination on this enforcement action by September 20, 2017. While Customs will ultimately be bound by the Commission’s Final Determination, in the meantime, that agency has decided to allow importation of Arista’s redesigned products while the ITC enforcement action is underway.

There have also been several recent decisions from the U.S. Patent and Trade Office (U.S. PTO) on patents that Arista has challenged. Specific to this case, the U.S. PTO upheld the validity of our ‘537 patent, which the ITC also found to be valid and infringed.

Of the eight Cisco patents that Arista challenged as a way to defend their use of copied IP, we are disappointed by the decision surrounding two (‘577 and ‘668) that were found by the ITC to be both valid and infringed. Both of those patents are associated with the ‘945 Investigation, though the ITC is not bound by the U.S. PTO’s findings. Nor do those decisions in any way halt the District Court case where Arista has been accused of infringing 12 patents, including the five the ITC has found infringed. That case is slated to continue once the ITC proceedings are complete.

For the ‘577 patent, the ITC refused to allow Arista to seek to invalidate patents that cover technology that its own founders claimed to invent while employed at Cisco. And because both patents were found by the ITC as valid and infringed, we believe there are sufficient grounds for appeal of the Patent Office’s ruling. It’s important to note that the U.S. PTO decisions regarding these two patents do not directly impact the ITC ‘945 proceedings. For that infringement, a bond is currently required for import or sale of Arista’s infringing products, and an import ban and cease and desist order are expected to go into effect beginning July 4.

Cisco’s goal remains to stop Arista from the continued intentional and pervasive infringement of our IP.