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Arista Wins Copyright and Patent Battle with Cisco

arista-wins-copyright-and-patent-battle-with-cisco

Recently, Arista Networks won a major ruling in the long-running patent and copyright clash with Cisco. A jury in San Jose, California federal court found that Arista owed no damages over Cisco’s claims of patent infringement. Additionally, the jurors also found that Arista did not infringe Cisco’s patent as well.

Initially, in 2014 Cisco sued Arista for infringing its copyright and patent which included Cisco Internetwork Operating System (IOS) 11.0, Cisco IOS 11.1 and Cisco IOS 11.2. Further, Cisco named one patent in the suit, US number 7,047,526, titled “Generic command interface for multiple executable routines”.

Cisco was roughly seeking $335 million for all the statutory damages and a trial by jury.

Cisco said that “rather than invest in the expensive and time-consuming effort that would have been necessary to develop its own features for Arista’s products, and specifically instead of investing the time and expense of developing its own CLI, Arista decided to simply copy Cisco’s unique approach and pioneering proprietary technologies”.

The command line interface (CLI) was the main part of the software in question and Cisco argued that Arista had illegally copied it. However, Arista claimed that the CLI is used by many rival companies and that Cisco’s attack was due to personal enmity.

On December 14th the jury absolved Arista of infringing any of Cisco’s copyrighted technical manuals. They also said that Arista did not induce infringement of two claims of the ‘526 patent. It also said that Arista was protected by “scenes a fair” doctrine, a legal principle in the copyright law that states, if there is no other way to make a product, the value of it cannot be credited to the creator of work. Arista stated, “the outcome represents an important victory not only for Arista but for the entire industry.”

 “Our goal has always been to protect technological innovation, and stop Arista from using our copyrighted and patented technology. We will look to Judge Freeman to determine whether there was sufficient evidence to warrant the conclusion reached by the jury, as well as other grounds for setting aside the trial result.” said Mark Chandler SVP, General Counsel and Secretary of Cisco.  

Case details

Type Names
Case Number 5:14-cv-05344
Court California Northern District Court
Filed date 12-05-2014
Judge Beth Labson Freeman
Plaintiff Cisco Systems, Inc.
Plaintiff Attorney John M. Desmarais
Plaintiff Law Firm Desmarais LLP
Defendant Arista Networks INC.
Defendant Attorney Ajay Krishnan
Defendant Law Firm Keker & Van Nest LLP
Product Arista 7010 7048 7050 7050X 7100 7150 7200 7250X and others (Networking products)
Patent US7047526|US7953886
Basis of Termination Judgment on the merits
Outcome of District court judgment Defendant

For more details on this case, click here.

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Deploy Patent Prosecution Analytics to Accelerate the Product Development Cycle: A Comparative Case Study

Patent prosecution analytics can provide valuable insight into the performance of an organization’s IP operations just as other forms of analytics help in reducing cost, in making better decisions and in creating new products and services. Technology companies who are actively filing patents can achieve cost savings and faster times to grant through prosecution analytics. I will illustrate what I mean by looking at two leading technology companies with different prosecution performance – Cisco and Juniper Network.

The patent prosecution analytics can illustrate areas for improvement, how a company compares with direct and indirect competitors, patent prosecution trends, and areas the company is performing well.

There are multiple ways to measure how well an organization’s patent prosecution processes perform. MaxVal and its clients have had good success with these methods:

  • Prosecution Success Score – The number of issued cases divided by the number of abandoned cases in a given year.
  • Application Abandonment before an Office Action
  • Rate of Issued Cases with 2 or more RCEs
  • Average Pendency

To illustrate these methods and the insight they can provide, MaxVal took a look at Cisco Systems and Juniper Networks, two competitors within the Computer Communications Equipment Industry. MaxVal used publicly available data for its analysis.

Patent Prosecution Score

A Prosecution Success Score is simply the number of issued cases divided by the number of abandoned cases in a given year. The higher the score, the better it is for the company. Higher prosecution success scores can be attributed to more efficient prosecution methods, a better invention disclosure screening process, and possibly fighting harder to get patent issuance.

Prosecution Success Score
Year Cisco Juniper
2013 12.3 15.6
2014 5.9 16.1
2015 5.9 47.8

While we see Cisco and Juniper had comparable Success Scores in 2013, Juniper has continued to improve their Success Score while Cisco’s Success Score has dramatically declined. Cisco is still getting patents issued at a high rate but many more applications are being abandoned. It would be useful for Cisco to further investigate and see what the reasons for these patent application abandonment are.

Rate of Abandonment Prior to an Office Action

Another telling metric would be the rate of abandoned cases prior to receiving an Office Action. If a case is abandoned prior to receiving even a single Office Action, then it is likely that the case should not have been filed in the first place or the company did not fight hard enough for the case. An option to reduce the number of abandonment prior to an OA would be to invest in pre-filing searches to become aware of the prior art.

Rate of Abandonment Prior to an Office Action
Year Cisco Juniper
2013 1.6% 9.1%
2014 4.2% 50%
2015 5.8% 40%

Cisco seems to have a very low rate of abandonment prior to an OA while Juniper’s rate in 2014 and 2015 seems rather high. However, Juniper only abandoned 14 and 5 cases, respectively, in 2014 and 2015 so the sample size is too small to make a proper assessment of their rate.

Rate of Issuance with 2+ RCEs

The next metric to look at is the number of issued cases prior to filing a Request for Continued Examination (RCE). A high rate in this metric is a strong indicator of inefficient prosecution methods (broader claims among other things). Since the application was ultimately issued, it can be inferred that it was inefficient prosecution by the practitioner that led to a number of RCEs prior to issuance.

Rate of Issuance with 2+ RCEs
Year Cisco Juniper
2013 3.3% 12.2%
2014 6.0% 6.6%
2015 4.0% 5.4%

Both Cisco and Juniper seem to have pretty good rates in this metric suggesting that their patent practitioners use efficient prosecution methods. While Juniper’s rate in 2013 was on the higher end of the spectrum, there has been a noticeable decrease in their rate.

The final metric to look at today is the average pendency between a first OA and issuance. While looking at the pendency from filing to issuance is a normal metric to look at, it doesn’t give the best insight to prosecution methods. Much of the time from filing to first OA is a result of the patent office delays in working on the application. So, a better indicator of an applicant’s prosecution methods is to look at the time from the first OA to issuance. A higher pendency can be attributed to receiving more OAs, taking longer to respond to OAs, and filing RCEs.

Average Pendency from OA to Issuance

Average Pendency from OA to Issuance
Cisco Juniper
Overall 13 months 18 months

As evidenced by the table above, Cisco seems to be getting their applications issued, on average, 5 months quicker than Juniper. Juniper should look closer at factors that can be attributed to this increase in pendency.

Overall Cisco and Juniper seem to employ reasonably efficient patent prosecution practitioners and methods. They both have high issuance rates and low abandonment rates. Cisco’s low abandonment prior to OA rate indicates a good invention disclosure screening process. And the low rate of issuance with 2+ RCEs indicates efficient patent prosecution methods.

These metrics, and others, illuminate a company’s patent prosecution process strengths and weaknesses. It allows companies to see how their competition is faring and what areas they need to improve.

By Bharath Venkat, MaxVal