In yet another twist to the ongoing patent and copyright infringement case between Cisco and Arista, Arista has landed a significant win that will let it once again import redesigned products to the US that have been under import embargo since January.
Specifically, according to a post on Arista’s site, on “April 7, 2017, U.S. Customs and Border Protection (“CBP”) completed its review and once again ruled that Arista’s redesigned products do not infringe the ’592, ’145, or ’537 patents that were the subject of a limited exclusion order and cease and desist order issued by the United States International Trade Commission (ITC) in Investigation No. 337-TA-944 and that Arista may resume importing its redesigned products into the United States.”
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.
+More on Network World: Cisco says Arista’s redesign moves not good enough+
The April 7 ruling follows the January 15, 2017 decision by CBP to revoke its November 18, 2016 ruling that our redesigned products do not infringe the ’145, ’592, and’537 patents. That revocation lead to those products being held back from import into the US. That ruling said 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.
Another positive note for Arista happened on April 4 when the ITC staff attorney assigned to the enforcement action announced the Office of Unfair Import Investigation’s (“OUII”) position on the merits. “OUII serves as a neutral third party representing the interests of the public in ITC investigations. OUII takes the position that Arista’s redesigned products do not infringe the ’537 patent, that Arista has fully complied with the ITC’s orders, and that Arista acted in good faith in doing so. Both parties will participate in a hearing for this matter on April 5, 2017.The ALJ’s initial determination on this matter is expected on June 20, 2017, and the ITC’s final determination is expected on September 20, 2017,” that statement read.
Arista also noted: “It is noteworthy that the ITC will independently evaluate the redesigned products and is not bound by CBP’s ruling. CBP is required to follow the ITC’s final determination. Arista appreciates the hard work and dedication of both the CBP and ITC teams to complete a thorough and reasonable ruling.”
At this writing Cisco hasn’t said anything about the April 7 ruling but just last week in a hearing about the case Mark Chandler, Senior Vice President, General Counsel and Secretary of Cisco wrote in his blog:
“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.”
Chandler went on to write: “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.”
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