The U.S. Customs and Border Protection (CBP) agency has revoked its November 2016 finding that Arista’s redesigned products don’t infringe a key Cisco patent -- as a result Cisco called on Arista to stop importing those products and recall others sold with redesigned software.
The finding is the latest round in a high-stakes battle between Cisco and Arista over patents and copyrights that has been going on since 2014. In the summer of 2016 the US Trade Representative began an import ban as well as a cease and desist order covering Arista products imposed by the International Trade Commission in June where it ruled that Arista had infringed on a number of Cisco’s technology patents.
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The current situation surrounds a claim that Arista has made that the software that runs its switching products --Extensible Operating System 4.16 and later-- had been sufficiently redesigned to work around Cisco’s infringement claims. In fact, on November 18, 2016, Arista got a letter from CBP stating that the company’s current products which contain its redesigned EOS are not within the scope of the limited exclusion order and it could begin selling its product in the U.S. again.
It is that letter that has now been revoked.
“All products sold since the ITC orders went into effect in August are infringing and continue to be subject to the ITC’s orders – our view is that the “redesign” is a sham. If the ITC concurs that the “redesign” does not avoid the patent, our enforcement action that is pending before the ITC can result in Arista’s forfeiture of all revenue from the sale of products since last August,” Mark Chandler, Senior Vice President, General Counsel and Secretary of Cisco wrote in a blog post on the current ruling.
Chandler continued: “Arista has previously stated that it will fully comply with the ITC’s orders on infringing products. We therefore call on Arista to 1) stop importing its products or their components (we hope CBP will now commence seizing any products or components Arista seeks to import); 2) stop selling its products imported or manufactured under the authority of the now-revoked November 18 ruling; and 3) recall any products sold in the United States since the ITC exclusion order went into effect in August 2016.”
It is important to understand that CBP has not ruled that Arista’s products infringe. Instead, CBP has expressed concern that its original ruling was incorrect, based on input provided by Cisco. It is equally important to understand that Arista has not yet responded to Cisco’s arguments and has not yet had an opportunity to address any concerns Customs may have as a result of those arguments. We look forward to engaging with CBP in the coming days, and we are confident that CBP will diligently and carefully evaluate the facts, as they have done throughout this process.”
Arista went on to state: “Although we strongly disagree with the ITC’s rulings and CBP’s revocation decision, we have a deep respect for these institutions and this process, and we remain completely committed to complying with the orders and rulings of the ITC and CBP. While we do not yet understand, or have any formal explanation for CBP’s revocation, we will absolutely continue to cooperate and to adhere to the process of obtaining formal approval of our redesign from CBP. We are grateful for the efforts the ITC and CBP have made, we continue to believe our design around does not infringe, and we look forward to the opportunity to address whatever concerns CBP may have. We also plan to lawfully fulfill orders through domestic manufacturing sources and with products that contain our non-infringing redesign. Itis important to note that the ITC’s orders do not prohibit us from selling non-infringing products manufactured in the US—even with imported subcomponents.”