Docket Nos. 2016-2563, -2539
REYNA, SCHALL, WALLACH
September 27, 2017
Brief summary: ITC decision that Arista’s importation of switches lacking software infringed (induced and contributory) Cisco’s patents affirmed.
Summary: This decision relates to the ITC’s § 337 investigation based on Cisco’s complaint that Arista’s import of network devices, software and components infringed six of its patents. An Administrative Law Judge (ALJ) issued a final initial determination finding Arista infringed three Cisco patents and not two others, and the ITC agreed. Arista appealed the infringement determination and the limited exclusion order, and Cisco appealed the non-infringement determation. At the time of the hearing, Arista’s imported switches “were fully assembled, but did not have EOS software installed” (the operating system), although it was “loaded…abroad and tested” but then removed before importation (as “Blank Switches”) The ITC’s claim construction determined “being stored in the database” “‘requires the storage of router configuration data’ as opposed to user-supplied commands”and was supported by the prosecution history (PH). Based on this construction, the ITC found induced infringement by “Arista’s sale and promotion of its accused products, including the black switches” and contributory infringement since “Arista’s blank switches were a material part of the invention”. It also explained that “importing only the components of the accused products for reassembly into complete functional switches…would still be in violation of [19 U.S.C. § 1337] because…the Blank Switches and the fully assembled complete switches indirectly infringe….”
The FC panel explained that it reviews ITC claim construction de novo (DeLorme, FC 2015), its legal determinations de novo and factual findings for substantial evidence (Spansion, FC 2010 (evidence a reasonable mind might accept)), and will affirm its “choice of remedy unless it is arbitrary, capricioius, an abuse of discretion or otherwise not in accordance with law” (Hyundai, FC 1990). The FC panel agreed with the ITC’s claim construction “in view of the specification and claims” and “ambiguous language from the” PH (citing Phillips, FC 2005 (“ordinary and customary meaning”); Ruckus Wireless (FC 2016) (consult specification, PH, dictionaries and any other relevant evidence), Poly-Am, FC 2016 (patentee may act as own lexicographer, “standard of disavowel is exacting, requiring clear and unequivocal evidence”)). Regarding the ITC’s determination that “Arista’s components…induce infringement”, Arista argued the ITC “did not make” the required “specific findings” but the FC panel disagreed (the ITC “sufficiently articulated its findings” and “has ‘broad discretion’” (Viscofan, FC 1986 (“Courts will not interfere…except where ‘the remedy has not reasonable relation to the unlawful practces found to exist.”)). The FC panel also agreed the ITC correctly determined Arista’s products did not infringe two of Cisco’s patents as it was based on “such relevant evidence as a reasonable mind might accept as adequate” (Consol. Edison, US 1938). Thus, the ITC’s decision was affirmed.