It wouldn’t be a day in Silicon Valley if there weren’t several patent-related and other legal disputes between major tech companies going on at any given moment. Sometimes they wind up being of little to no consequence, especially when they are settled out of court. This happens more often than not – and wound up being the final result in the widely watched and scrutinized court kerfuffles between Palo Alto Networks and Juniper Networks in a protracted 2014 patent war.
Currently, several such legal actions rage on in the tech sector, involving such giants as Huawei, Samsung, Oracle, and Apple. The one that has industry watchers talking the most right now, however, is that between Cisco and Arista.
Cisco is not exactly known for patent trolling – or, indeed, being litigation happy at all. On December 5, 2014, Cisco’s General Counsel Mark Chandler blogged that Cisco had initiated lawsuit against entities it does business with or competitors at most no more than five times in the prior 13 years.
That is, potentially, until that day, when the network technology giant filed multicount lawsuits for patent and copyright infringement against Arista – a competitor made up of mostly Cisco employees when it was founded in 2008.
Indeed, if the claims in Cisco’s filings bear even a modicum of truth, the allegations against Arista are damning indeed.
“Arista lifted over 500 of our multi-word command line expressions identically and directly from our ‘IOS’ into Arista’s ‘EOS’, comprising almost half of their entire command line interface,” reported Chandler. “While simple, single-word commands (‘Copy’, ‘Paste’, ‘Delete’, for example) may not be protectable under copyright, unique multi-word commands like ‘aaa group server radius’, ‘dot1x max-reauth-req’ and ‘clear ip igmp group’ are not self-evident.”
To put these factors into context, whereas Arista has allegedly directly copied 500 of these multi-word command expressions, other networking products have exponentially smaller overlap, according to Chandler.
Exacerbating the claims were Cisco’s copyright-infringement allegations; Chandler pointed out that Arista had allegedly lifted “[e]ntire sections of [Cisco’s] user manuals, complete with grammatical errors,” and put them in Arista’s own product documentation.
Despite predictable kvetching by Arista’s CEO – and Cisco alum – Jayshree Ullal, who publicly stated that “[this] is not the Cisco I knew” and accused Cisco of “brazen[ly]” going to “extreme lengths” in pursuing its claims – Cisco has been largely successful thus far.
Cisco is winning – but there’s more to come
Although a couple of Cisco’s claims were dismissed, the company prevailed on three of five patent claims earlier this year before the International Trade Commission – and the ITC affirmed this ruling on June 23. Arista, meanwhile, has been compelled to work on “design arounds” following an ITC-issued import ban.
This redesigning is doing little to keep Arista out of Cisco’s crosshairs, however. At the end of August, when the ITC upheld earlier findings of infringement, Cisco filed an enforcement complaint related to Arista’s supposed workarounds, contending that Arista’s products still fundamentally use Cisco-patented technology and that its “claim of a workaround is a thin veil to cover Arista’s ongoing infringement.”
It is worth noting that the ITC decisions are merely the result of parallel administrative proceedings. A trial in a federal district court – where monetary damages and additional relief may be at stake – is set to begin in November on the copyright-infringement and patent-infringement claims related to the command-line interface issues. Meanwhile, Arista is still doing what it can to fight back – leveling an antitrust lawsuit against Cisco in apparent retaliation. The antitrust case, however, has been stayed by a U.S. federal judge until after the November infringement trial has concluded.
In short, this is far from the end of the road for the IP battles between these two companies. Cisco, however, appears to be beating Arista soundly thus far.
Joe Stanganelli, principal of Beacon Hill Law, is a Boston-based attorney, corporate communications and data privacy consultant, writer, speaker, and bridge player. Follow him on Twitter at @JoeStanganelli.
(Disclaimer: This article is provided for informational, educational and/or entertainment purposes only. Neither this nor other articles here constitute legal advice or the creation, implication or confirmation of an attorney-client relationship. For actual legal advice, personally consult with an attorney licensed to practice in your jurisdiction.)