82 FR 21827 - Certain Network Devices, Related Software and Components Thereof (II); Commission Final Determination of Violation of Section 337; Termination of Investigation; Issuance of Limited Exclusion Order and Cease and Desist Order

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 82, Issue 89 (May 10, 2017)

Page Range		21827-21829
FR Document		2017-09439

Notice is hereby given that the U.S. International Trade Commission has found a violation of section 337 of the Tariff Act of 1930, as amended, in the above-captioned investigation. The Commission has determined to issue a limited exclusion order. The investigation is terminated.

Federal Register, Volume 82 Issue 89 (Wednesday, May 10, 2017)

[Federal Register Volume 82, Number 89 (Wednesday, May 10, 2017)]
[Notices]
[Pages 21827-21829]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2017-09439]

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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-945]

Certain Network Devices, Related Software and Components Thereof
(II); Commission Final Determination of Violation of Section 337;
Termination of Investigation; Issuance of Limited Exclusion Order and
Cease and Desist Order

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 found a violation of section 337 of the Tariff Act of
1930, as amended, in the above-captioned investigation. The Commission
has determined to issue a limited exclusion order. The investigation is
terminated.

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, in the sale for importation, importation,
and sale within the United States after importation of certain network
devices, related software and components thereof by reason of
infringement of certain claims of U.S. Patent Nos. 7,023,853;
6,377,577; 7,460,492; 7,061,875; 7,224,668; and 8,051,211. The
Complaint further alleges the existence of a domestic industry. The
Commission's Notice of Investigation named Arista Networks, Inc. of
Santa Clara, California (``Arista'') as respondent. The Office of
Unfair Import Investigations (``OUII'') was also named as a party to
the investigation. The Commission previously terminated the
investigation in part as to certain claims of the asserted patents.
Order No. 38 (Oct. 27, 2015), unreviewed Notice (Nov. 18, 2015); Order
No. 47 (Nov. 9, 2015), unreviewed Notice (Dec. 1, 2015).
On December 9, 2016, the ALJ issued her Final ID, finding a
violation of section 337 with respect to claims 1, 7, 9, 10, and 15 of
the '577 patent; and claims 1, 2, 4, 5, 7, 8, 10, 13, 18, 56, and 64 of
the '668 patent. The ALJ found no violation of section 337 with respect
to claim 2 of the '577 patent; claims 46 and 63 of the '853 patent;
claims 1, 3, and 4 of the '492 patent; claims 1-4, and 10 of the '875
patent; and claims 2, 6, 13, and 17 of the '211 patent.
In particular, the Final ID finds that Cisco has shown by a
preponderance of the evidence that the accused products infringe
asserted claims 1, 7, 9, 10, and 15 of the '577 patent; and asserted
claims 1, 2, 4, 5, 7, 8, 10, 13, 18, 56, and

[[Page 21828]]

64 of the '668 patent. The Final ID finds that Cisco has failed to show
by a preponderance of the evidence that the accused products infringe
asserted claim 2 of the '577 patent; asserted claims 46 and 63 of the
'853 patent; asserted claims 1, 3, and 4 of the '492 patent; asserted
claims 1-4, and 10 of the '875 patent; and asserted claims 2, 6, 13,
and 17 of the '211 patent.
The Final ID also finds that assignor estoppel bars Arista from
asserting that the '577 and '853 patents are invalid. The Final ID
finds, however, that if assignor estoppel did not apply, Arista has
shown by clear and convincing evidence that claims 1, 7, 9, 10, and 15
of the '577 patent and claim 46 of the '853 patent are invalid as
anticipated by U.S. Patent No. 5,920,886 (``Feldmeier''). The Final ID
further finds that Arista has failed to show by clear and convincing
evidence that any of the remaining asserted claims are invalid. The
Final ID also finds that Arista has not proven by clear and convincing
evidence that Cisco's patent claims are barred by equitable estoppel,
waiver, implied license, laches, unclean hands, or patent misuse.
The Final ID finds that Cisco has satisfied the economic prong of
the domestic industry requirement for all of the patents-in-suit
pursuant to 19 U.S.C. 337(A), (B), and (C). The Final ID finds,
however, that Cisco has failed to satisfy the technical prong of the
domestic industry requirement with respect to the '875, '492, and '211
patents. The Final ID finds that Cisco has satisfied the technical
prong with respect to the '577, '853, and '668 patents.
The Final ID also contains the ALJ's recommended determination on
remedy and bonding. The ALJ recommended that the appropriate remedy is
a limited exclusion order with a certification provision and a cease
and desist order against Arista. The ALJ recommended the imposition of
a bond of five (5) percent during the period of Presidential review.
On December 29, 2016, Cisco, Arista, and OUII each filed petitions
for review of various aspects of the Final ID. On January 10, 2017,
Cisco, Arista, and OUII filed responses to the various petitions for
review.
On January 11, 2017, Cisco and Arista each filed a post-RD
statement on the public interest pursuant to Commission Rule
210.50(a)(4). No responses were filed by the public in response to the
post-RD Commission Notice issued on December 20, 2016. See Notice of
Request for Statements on the Public Interest (Dec. 20, 2016); 81 FR
95194-95 (Dec. 27, 2016).
On March 1, 2017, the Commission determined to review the Final ID
in part. Notice of Review (Mar. 1, 2017); 82 FR 12844-47 (Mar. 7,
2017).
With respect to the '577 patent, the Commission determined to
review the Final ID's finding that Arista has indirectly infringed the
'577 patent by importing Imported Components, as referenced at page 110
in the Final ID. The Commission also determined to review the Final
ID's finding that Arista's post-importation direct infringement cannot
alone support a finding of violation of section 337. The Commission
further determined to review the Final ID's finding that Feldmeier
anticipates claims 1, 7, 9, 10, and 15 of the '577 patent.
With respect to the '853 patent, the Commission determined to
review the Final ID's claim construction findings with respect to claim
elements (c), (d), and (f) of claim 46. The Commission also determined
to review the Final ID's findings concerning direct and indirect
infringement regarding the '853 patent. The Commission further
determined to review the Final ID's finding that assignor estoppel
applies to validity challenges based on indefiniteness. The Commission
also determined to review the Final ID's finding that Feldmeier does
not anticipate claim 46.
With respect to the '875 and '492 patents, the Commission
determined to review the Final ID's finding of no direct infringement
and the related finding of no indirect infringement. The Commission
also determined to review the Final ID's finding that Cisco has failed
to satisfy the technical prong of the domestic industry requirement
with respect to the '875 and '492 patents.
With respect to the '668 patent, the Commission determined to
review the Final ID's finding of direct infringement and the Final ID's
finding of indirect infringement, in particular as concerns Arista's
importation of Imported Components.
With respect to the '211 patent, the Commission determined to
review the Final ID's finding that Cisco has failed to satisfy the
technical prong with respect to claims 1 and 12 of the '211 patent,
including the Final ID's finding that claims 1 and 12 are invalid.
The Commission determined not to review the remaining issues
decided in the Final ID.
The Commission also requested briefing from the parties on nine
questions concerning the issues under review, as well as remedy, the
public interest, and bonding. See Notice of Review at 4-5; 82 FR at
12845-46.
On March 15, 2017, the parties submitted initial briefing in
response to the notice of review. On March 24, 2017, the parties filed
response submissions.
Having examined the record of this investigation, including the
Final ID, the petitions for review, the responses thereto, and the
parties' submissions on review, the Commission has determined to find
that a violation of section 337 has occurred with respect to the
asserted claims of the '577 and '668 patents.
Specifically, with respect to the '577 patent, the Commission did
not review the Final ID's finding that all of Arista's Accused ACL
Products directly infringe claims 1, 7, 9-10, and 13 of the '577
patent. The Commission has determined to affirm the Final ID's finding
that Arista induces infringement of the '577 patent by importing both
the Blank Switches and Imported Components (as defined at Final ID at
110 and Respondent Arista Networks Inc.'s Petition for Review of the
Initial Determination on Violation of Section 337 (Dec. 29, 2016) at
77, 80). The Commission has further determined to affirm the Final ID's
finding that Arista contributorily infringes by importing the Blank
Switches. The Commission has determined not to reach the issue of
whether Arista contributorily infringes the asserted claims of the '577
patent by importing the Imported Components. Based on the Final ID's
unreviewed finding that assignor estoppel applies with respect to the
'577 patent, the Commission has determined not to reach the issue of
whether Feldmeier anticipates the '577 patent.
With respect to the '668 patent, the Commission has determined to
affirm the Final ID's finding that several variations of the '668
Accused Products--including Control-Plane Access Control List, Control
Plane Policing, and non-configurable Per-Input Port Control Plane
Policing (``PiP CoPP'')--infringe asserted claims 1, 2, 4, 5, 7, 8, 10,
13, 56, and 64 of the '668 patent, and to affirm with modification the
Final ID's finding that the variation including configurable PiP CoPP
infringes those claims, to supply the Commission's reasoning. With
respect to claim 64, the Commission has determined to affirm with
modification the Final ID's finding of infringement with respect to
claim 64 to correct a misstatement in the Final ID. The Commission has
also determined to affirm the Final ID's finding that Arista induces
infringement of the asserted claims of the '668 patent by importing
fully assembled Blank Switches and the Imported Components. The
Commission has further determined to affirm the Final ID's finding that
Arista

[[Page 21829]]

contributorily infringes asserted claims 1, 2, 4, 5, 7, 8, 10, 13, 56,
and 64 by importing fully assembled Blank Switches. The Commission has
determined not to reach the issue of whether Arista contributorily
infringes the asserted claims of the '668 patent by importing the
Imported Components.
The Commission has determined to find no violation of section 337
with respect to the remaining asserted claims of the '853, '875, '492,
and '211 patents.
Specifically, with respect to the '853 patent, the Commission has
determined to affirm with modification, to supply the Commission's
reasoning, the Final ID's finding that Arista's Accused ACL Products do
not directly infringe claim 46, and to affirm the Final ID's finding
that Arista does not directly infringe claim 63 of the '853 patent.
Accordingly, the Commission has determined to affirm the Final ID's
finding of no indirect infringement with respect to those claims. Based
on the Final ID's unreviewed finding that assignor estoppel applies
with respect to the '853 patent, the Commission has determined not to
reach the issue of whether Feldmeier anticipates the '853 patent.
With respect to the '875 and '492 patents, the Commission has
determined to affirm with modification the Final ID's finding of no
infringement of the asserted claims and that Cisco has failed to
satisfy the technical prong of the domestic industry requirement.
With respect to the '211 patent, the Commission did not review the
Final ID's finding of no infringement with respect to the asserted
claims of the '211 patent. The Commission has also determined to vacate
the Final ID's finding with respect to the validity of claims 1 and 12
of the '211 patent, and declines to reach the technical prong issue.
The Commission has determined that the appropriate form of relief
is a limited exclusion order under 19 U.S.C. 1337(d)(1), prohibiting
the unlicensed entry of network devices, related software and
components thereof that infringe any of claims l, 7, 9, 10, and 15 of
the '577 patent; and claims 1, 2, 4, 5, 7, 8, 10, 13, 18, 56, and 64 of
the '668 patent, and an order that Arista cease and desist from
importing, selling, marketing, advertising, distributing, transferring
(except for exportation), soliciting United States agents or
distributors, and aiding or abetting other entities in the importation,
sale for importation, sale after importation, transfer (except for
exportation), or distribution of certain network devices, related
software and components thereof that infringe any of claims l, 7, 9,
10, and 15 of the '577 patent; and claims 1, 2, 4, 5, 7, 8, 10, 13, 18,
56, and 64 of the '668 patent.
The Commission has determined that the public interest factors
enumerated in section 337(d) and (f), 19 U.S.C. 1337(d) and (f), do not
preclude the issuance of the limited exclusion order or cease and
desist order. The Commission has determined that bonding at five (5)
percent of the entered value of the covered products is required during
the period of Presidential review, 19 U.S.C. 1337(j).
The Commission's order and opinion were delivered to the President
and the United States Trade Representative on the day of their
issuance.
The investigation is terminated.
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: May 4, 2017.
Lisa R. Barton,
Secretary to the Commission.
[FR Doc. 2017-09439 Filed 5-9-17; 8:45 am]
BILLING CODE 7020-02-P

Federal Register / Vol. 82, No. 89 / Wednesday, May 10, 2017 / Notices 21827

The second day of the Biomedical Branch, Division of Extramural Activities, 708–2301. Copies of non-confidential
Library and Informatics Review National Cancer Institute, NIH, 9609 Medical documents filed in connection with this
Committee meeting, June 16, 2017, will Center Drive, Room 7W236, Bethesda, MD investigation are or will be available for
20892–9750, 240–276–5120, coynes@
now be held from 8:00 a.m. to 6:00 p.m. inspection during official business
mail.nih.gov.
instead of 8:00 a.m. to 2:00 p.m. The hours (8:45 a.m. to 5:15 p.m.) in the
Name of Committee: National Cancer
meeting is closed to the public. Office of the Secretary, U.S.
Institute Special Emphasis Panel;
Dated: May 4, 2017. Partnerships in Cancer Research (P20) and International Trade Commission, 500 E
Michelle Trout, Cancer Health Equity (U54). Street SW., Washington, DC 20436,
Program Analyst, Office of Federal Advisory Date: June 20–21, 2017. telephone (202) 205–2000. General
Committee Policy. Time: 7:30 a.m. to 2:00 p.m. information concerning the Commission
[FR Doc. 2017–09414 Filed 5–9–17; 8:45 am]
Agenda: To review and evaluate grant may also be obtained by accessing its
applications. Internet server at https://www.usitc.gov.
BILLING CODE 4140–01–P Place: Bethesda North Marriott Hotel & The public record for this investigation
Conference Center, 5701 Marinelli Road, may be viewed on the Commission’s
Bethesda, MD 20852.
DEPARTMENT OF HEALTH AND electronic docket (EDIS) at https://
Contact Person: Clifford Schweinfest,
HUMAN SERVICES Ph.D., Scientific Review Officer, Special edis.usitc.gov. Hearing-impaired
Review Branch, Division of Extramural persons are advised that information on
National Institutes of Health Activities, National Cancer Institute, NIH, this matter can be obtained by
9609 Medical Center Drive, Room 7W108, contacting the Commission’s TDD
National Cancer Institute; Notice of Bethesda, MD 20892–9750, 240–276–6343, terminal on (202) 205–1810.
Closed Meetings schweinfestcw@mail.nih.gov. SUPPLEMENTARY INFORMATION: The
Pursuant to section 10(d) of the (Catalogue of Federal Domestic Assistance Commission instituted this investigation
Federal Advisory Committee Act, as Program Nos. 93.392, Cancer Construction; on January 27, 2015, based on a
93.393, Cancer Cause and Prevention Complaint filed by Cisco Systems, Inc.
amended (5 U.S.C. App.), notice is
Research; 93.394, Cancer Detection and of San Jose, California (‘‘Cisco’’). 80 FR
hereby given of the following meetings. Diagnosis Research; 93.395, Cancer
The meetings will be closed to the 4313–14 (Jan. 27, 2015). The Complaint
Treatment Research; 93.396, Cancer Biology
public in accordance with the Research; 93.397, Cancer Centers Support; alleges violations of section 337 of the
provisions set forth in sections 93.398, Cancer Research Manpower; 93.399, Tariff Act of 1930, as amended, 19
552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Cancer Control, National Institutes of Health, U.S.C. 1337, in the sale for importation,
as amended. The grant applications and HHS) importation, and sale within the United
the discussions could disclose Dated: May 4, 2017. States after importation of certain
confidential trade secrets or commercial network devices, related software and
Melanie J. Pantoja,
property such as patentable material, components thereof by reason of
Program Analyst, Office of Federal Advisory
and personal information concerning infringement of certain claims of U.S.
Committee Policy.
individuals associated with the grant Patent Nos. 7,023,853; 6,377,577;
[FR Doc. 2017–09412 Filed 5–9–17; 8:45 am]
applications, the disclosure of which 7,460,492; 7,061,875; 7,224,668; and
BILLING CODE 4140–01–P 8,051,211. The Complaint further
would constitute a clearly unwarranted
invasion of personal privacy. alleges the existence of a domestic
Name of Committee: National Cancer
industry. The Commission’s Notice of
Institute Special Emphasis Panel; INTERNATIONAL TRADE Investigation named Arista Networks,
Coordinating Center for Population-based COMMISSION Inc. of Santa Clara, California (‘‘Arista’’)
Research to Optimize the Screening Process. as respondent. The Office of Unfair
[Investigation No. 337–TA–945]
Date: June 13, 2017. Import Investigations (‘‘OUII’’) was also
Time: 10:00 a.m. to 5:00 p.m. named as a party to the investigation.
Agenda: To review and evaluate grant
Certain Network Devices, Related
Software and Components Thereof (II); The Commission previously terminated
applications.
Commission Final Determination of the investigation in part as to certain
Place: National Cancer Institute Shady
Grove, 9609 Medical Center Drive, Room Violation of Section 337; Termination claims of the asserted patents. Order No.
7W112, Rockville, MD 20850 (Telephone of Investigation; Issuance of Limited 38 (Oct. 27, 2015), unreviewed Notice
Conference Call). Exclusion Order and Cease and Desist (Nov. 18, 2015); Order No. 47 (Nov. 9,
Contact Person: Jennifer C. Schiltz, Ph.D., Order 2015), unreviewed Notice (Dec. 1, 2015).
Scientific Review Officer, Special Review On December 9, 2016, the ALJ issued
Branch, Division of Extramural Activities, AGENCY: U.S. International Trade her Final ID, finding a violation of
National Cancer Institute, NIH, 9609 Medical Commission. section 337 with respect to claims 1, 7,
Center Drive, Room 7W264, Bethesda, MD
ACTION: Notice. 9, 10, and 15 of the ’577 patent; and
20892–9750, 240–276–5864, jennifer.schiltz@
nih.gov. claims 1, 2, 4, 5, 7, 8, 10, 13, 18, 56, and
SUMMARY: Notice is hereby given that 64 of the ’668 patent. The ALJ found no
Name of Committee: National Cancer the U.S. International Trade
Institute Special Emphasis Panel; Biological violation of section 337 with respect to
Comparisons in Patient-Derived Models of
Commission has found a violation of claim 2 of the ’577 patent; claims 46 and
Cancer. section 337 of the Tariff Act of 1930, as 63 of the ’853 patent; claims 1, 3, and
Date: June 14, 2017. amended, in the above-captioned 4 of the ’492 patent; claims 1–4, and 10
Time: 1:00 p.m. to 4:30 p.m. investigation. The Commission has of the ’875 patent; and claims 2, 6, 13,
jstallworth on DSK7TPTVN1PROD with NOTICES

Agenda: To review and evaluate grant determined to issue a limited exclusion and 17 of the ’211 patent.
applications. order. The investigation is terminated. In particular, the Final ID finds that
Place: National Cancer Institute Shady
Grove, 9609 Medical Center Drive, Room
FOR FURTHER INFORMATION CONTACT: Cisco has shown by a preponderance of
7W236, Rockville, MD 20850 (Telephone Megan M. Valentine, Office of the the evidence that the accused products
Conference Call). General Counsel, U.S. International infringe asserted claims 1, 7, 9, 10, and
Contact Person: Robert Coyne, Ph.D., Trade Commission, 500 E Street SW., 15 of the ’577 patent; and asserted
Scientific Review Officer, Special Review Washington, DC 20436, telephone (202) claims 1, 2, 4, 5, 7, 8, 10, 13, 18, 56, and

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Document Created: 2017-05-10 00:01:09
Document Modified: 2017-05-10 00:01:09

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Notice.
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.
FR Citation		82 FR 21827