[Federal Register Volume 83, Number 127 (Monday, July 2, 2018)]
[Notices]
[Pages 30954-30956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-14130]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-945]


Certain Network Devices, Related Software and Components Thereof 
(II) (Modification 2); Modification of Limited Exclusion Order and 
Cease and Desist Order; Termination of the Modification Proceeding as 
to U.S. Patent No. 6,377,577 and Suspension of the Modification 
Proceeding as to U.S. Patent No. 7,224,668

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to modify a limited exclusion order and a 
cease and desist order (``the remedial orders'') issued against Arista 
Networks, Inc. of Santa Clara, California (``Arista'') in Inv. No. 337-
TA-945. The above-captioned

[[Page 30955]]

modification proceeding is terminated as to U.S. Patent No. 6,377,577 
(``the '577 patent'') and is suspended as to U.S. Patent No. 7,224,668 
(``the '668 patent'').

FOR FURTHER INFORMATION CONTACT: Megan M. Valentine, Office of the 
General Counsel, U.S. International Trade Commission, 500 E Street SW, 
Washington, DC 20436, telephone (202) 708-2301. Copies of non-
confidential documents filed in connection with this investigation are 
or will be available for inspection during official business hours 
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street SW, Washington, DC 20436, 
telephone (202) 205-2000. General information concerning the Commission 
may also be obtained by accessing its internet server at https://www.usitc.gov. The public record for this investigation may be viewed 
on the Commission's electronic docket (EDIS) at https://edis.usitc.gov. 
Hearing-impaired persons are advised that information on this matter 
can be obtained by contacting the Commission's TDD terminal on (202) 
205-1810.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation 
on January 27, 2015, based on a Complaint filed by Cisco Systems, Inc. 
of San Jose, California (``Cisco''). 80 FR 4313-14 (Jan. 27, 2015). The 
Complaint alleges violations of section 337 of the Tariff Act of 1930, 
as amended, 19 U.S.C. 1337 (``section 337''), by reason of infringement 
of certain claims of U.S. Patent Nos. 7,023,853 (``the '853 patent''); 
the '577 patent; 7,460,492 (``the '492 patent''); 7,061,875 (``the '875 
patent''); the '668 patent; and 8,051,211 (``the '211 patent''). The 
Complaint further alleges the existence of a domestic industry. The 
Commission's Notice of Investigation named Arista as the respondent. 
The Office of Unfair Import Investigations (``OUII'') was also named as 
a party to the investigation. The Commission terminated the 
investigation in part as to certain claims of the asserted patents. 
Notice (Nov. 18, 2015) (see Order No. 38 (Oct. 27, 2015)); Notice (Dec. 
1, 2015) (see Order No. 47 (Nov. 9, 2015)).
    On June 11, 2016, the Patent Trial and Appeal Board (``PTAB'') of 
the U.S. Patent and Trademark Office instituted separate inter partes 
review (``IPR'') proceedings concerning the '577 and '668 patents. 
Arista Networks, Inc. v. Cisco Systems, Inc., Case IPR2016-00303 
(regarding the '577 patent); Arista Networks, Inc. v. Cisco Systems, 
Inc., Case IPR2016-00309 (regarding the '668 patent).
    On May 4, 2017, the Commission found a violation of section 337 
with respect to certain of the asserted claims of the '577 and '668 
patents. Notice (May 4, 2017); 82 FR 21827-29 (May 10, 2017); see also 
Notice of Correction (May 30, 2017); 82 FR 25811 (June 5, 2017). The 
Commission issued a limited exclusion order (``LEO'') and a cease and 
desist order (``CDO'') against Arista. Id. The Commission did not find 
a violation with respect to the '853, '875, '492, and '211 patents. Id.
    On May 25, 2017, the PTAB issued its final written decision finding 
claims 1, 7-10, 12-16, 18-22, 25, and 28-31 of the '577 patent 
unpatentable based on prior art not presented in the Commission 
investigation. On June 1, 2017, the PTAB issued its final written 
decision finding claims 1-10, 12, 13, 15-28, 30, 33-36, 55-64, 66, 67, 
and 69-72 of the '668 patent unpatentable based on certain combinations 
of prior art not presented in the Commission investigation.
    On June 30, 2017, Cisco filed a notice of appeal with the United 
States Court of Appeals for the Federal Circuit (``Federal Circuit''), 
seeking review of the Commission's finding of no violation as to the 
'853, '875, '492, and '211 patents. Cisco Sys., Inc. v. Int'l Trade 
Comm'n, Appeal No. 17-2289. On July 21, 2017, Arista filed a notice of 
appeal with the Federal Circuit, seeking review of the Commission's 
finding of violation as to the '577 and '668 patents. Arista Networks, 
Inc. v. Int'l Trade Comm'n, Appeal No. 17-2336. On August 3, 2017, the 
Federal Circuit consolidated the Arista and Cisco appeals. Cisco Sys., 
Inc. v. Int'l Trade Comm'n, Appeal No. 17-2289, Dkt. No. 20. The 
consolidated appeal is currently pending before the Federal Circuit.
    On August 25, 2017, Arista filed a motion with the Federal Circuit 
seeking to stay the Commission's remedial orders pending resolution of 
the appeal on the merits. On September 22, 2017, the Federal Circuit 
denied this request ``subject to the condition that the product 
redesign on which Cisco relies to deny irreparable harm must be 
permitted to enter the country, without being blocked by the Commission 
order under review in this case, unless and until Commission 
proceedings are initiated and completed to produce an enforceable 
determination that such a redesign is barred by the order here under 
review or by a new or amended order.'' Cisco Sys, Inc. v. ITC; Arista 
Networks, Inc. v. ITC, Appeal Nos. 2017-2289, -2351, Order at 3 (Fed. 
Cir. Sept. 22, 2017).
    On September 27, 2017, Cisco petitioned for a modification 
proceeding to determine whether Arista's redesigned switches infringe 
the patent claims that are the subject of the LEO and CDO issued in 
this investigation and for modification of the remedial orders to 
specify the status of these redesigned products.
    On November 1, 2017, the Commission instituted the modification 
proceeding. 82 FR 50678 (Nov. 1, 2017). On November 7, 2018, the 
Commission issued a notice clarifying that OUII is not named as a party 
in the modification proceeding. 82 FR 52318 (Nov. 13, 2017).
    On February 14, 2018, the Federal Circuit summarily affirmed the 
PTAB's decision finding the claims of the '668 patent unpatentable. 
Cisco Systems, Inc. v. Arista Networks, Inc., Appeal No. 17-2384, Order 
(Feb. 14, 2018). The Court issued the mandate on March 23, 2018. Id., 
Dkt. No. 54.
    On March 15, 2018, Arista filed a motion before the Commission to 
stay the Commission's remedial orders as to the '668 patent. On March 
26, 2018, Cisco filed its response stating that it takes no position on 
Arista's motion.
    On March 23, 2018, the ALJ issued a recommended determination in 
the modification proceeding (``MRD''), finding that Arista's redesigned 
products infringe the relevant claims of the '668 patent but do not 
infringe the relevant claims of the '577 patent. MRD (Mar. 23, 2018). 
Also on March 23, 2018, the ALJ issued an order denying Arista's motion 
to stay the modification proceedings or to stay the remedial orders 
with respect to the '668 patent. Order No. 20 (Mar. 23, 2018).
    On April 5, 2018, the Commission determined to modify the remedial 
orders to suspend enforcement of those orders with respect to the '668 
patent. Notice (Apr. 5, 2018); Comm'n Order (Apr. 5, 2018).
    Also on April 5, 2018, Cisco filed comments to the MRD, requesting 
review of the ALJ's findings that Arista's redesigned products do not 
infringe the relevant claims of the '577 patent. On the same day, 
Arista filed comments to the MRD, requesting review of the ALJ's 
finding that its redesigned products infringe the relevant claims of 
the '668 patent and preserving certain alternative grounds of 
affirmance regarding the ALJ's finding that the redesigned products do 
not infringe the relevant claims of the '577 patent.
    Further on April 5, 2018, Arista filed a motion to stay the 
modification proceeding as to the '668 patent based on the Federal 
Circuit's affirmance of the PTAB's determination that the

[[Page 30956]]

relevant claims of the '668 patent are unpatentable.
    On April 12, 2018, Cisco and Arista filed responses to each other's 
comments.
    On April 16, 2017, Cisco filed a response to Arista's stay motion.
    Having examined the record of this modification proceeding, 
including the MRD, the comments to the MRD, and the responses thereto, 
the Commission has determined to find that Cisco has failed to show by 
a preponderance of the evidence that Arista's redesigned products 
infringe claims 1, 7, 9, 10, and 15 of the '577 patent or that Arista 
has indirectly infringed those claim by contributing to or inducing 
infringement by its customers. Accordingly, the Commission has 
determined to modify the remedial orders to exempt Arista's redesigned 
products that were the subject of this modification proceeding. The 
modification proceeding is terminated with respect to the '577 patent.
    The Commission has also determined to suspend the modification 
proceeding with respect to the '668 patent and to deny Arisa's motion 
to stay the modification proceeding as to the '668 patent as moot in 
light of the Commission's prior suspension of the remedial orders with 
respect to the '668 patent.
    The authority for the Commission's determination is contained in 
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and 
in part 210 of the Commission's Rules of Practice and Procedure (19 CFR 
part 210).

    By order of the Commission.

    Issued: June 26, 2018.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2018-14130 Filed 6-29-18; 8:45 am]
 BILLING CODE 7020-02-P