A judge has dismissed two parts of Cisco's patent infringement lawsuit against Arista, but is letting the rest of the case move forward.
Cisco Systems Inc. (Nasdaq: CSCO) hit Arista Networks Inc. in December with massive patent and copyright lawsuits charging "repeated and pervasive copying of key inventions in Cisco products." The infringing features include Cisco's implementation of the generic command line interface (CLI), Cisco alleges. (See Cisco Slams Arista With Massive Patent & Copyright Suit.)
In a July 9 decision, Judge Beth Labson Freeman, for the US District Court in San Jose, granted Arista's motion to dismiss Cisco allegations of indirect patent infringement prior to the lawsuit, because Cisco is not seeking damages for the allegations prior to the suit.
Separately, Freeman upheld a motion by Arista to dismiss a claim by Cisco that Arista willfully infringed Cisco's patents after Cisco filed its lawsuit.
In that claim, Cisco charged that Arista's EOS+ software, released in December, after the lawsuit was filed, continued patent violations alleged in the lawsuit. Cisco claims that Arista's own press release shows "plausibly that Arista brought a new product to market despite having been put on notice of its infringing conduct by virtue of" Cisco's lawsuit, according to Freeman's decision. (See Arista Gets With the Programmability Program.)
But Arista said EOS+ isn't a new product but instead is a "new version of an existing product," Freeman says (emphasis hers). The judge dismisses Arista's statement in its press release as "puffery."
Cisco proposed a "bright line" test "to determine when a party could seek damages for willful infringement" that goes beyond just "continuing to sell existing accused products while defending the suit," Freeman said
But Freeman decided that the test is unnecessary, because Cisco "failed to allege sufficient facts to meet its own 'bright line' test," and existing precedent covers the allegations. "Especially in regard to software products where updates and revisions are commonplace and frequent in a rapidly evolving market, one could expect that during the course of litigation most software products would have to be revised or die," Freeman says.
Freeman left the door open for Cisco to amend its pleadings.
Freeman's order giving Cisco the opportunity to amend its complaint is "exactly what we expected," Cisco general counsel Mark Chandler said in a statement emailed to Light Reading by a Cisco spokesman.
The decision leaves Arista "in the strange position" of arguing that its own claims about EOS were just "puffery," Chandler said.
Chandler added, "They introduced EOS+ even after they knew of our allegations that they had used our patented technologies, so there can be no doubt that their action was willful. Their motion against the willfulness allegation doesn't rest on denial of infringement, but rather suggest that EOS+ is just a minor tweak to their earlier infringing product. Having owned up to that, maybe they will decide to step forward and admit their patent infringement. The patent infringement claims are unaffected by the judge's order."
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