83 FR 47350 - Certain Network Devices, Related Software and Components Thereof (II) (Modification 2); Grant of Joint Motion To Terminate the Modification Proceeding Based on a Settlement Agreement; Termination of the Modification Proceeding in Its Entirety

INTERNATIONAL TRADE COMMISSION

Federal Register Volume 83, Issue 182 (September 19, 2018)

Page Range		47350-47351
FR Document		2018-20363

Notice is hereby given that the U.S. International Trade Commission has determined grant a joint motion of complainant Cisco Systems, Inc. of San Jose, California (``Cisco'') and respondent Arista Networks, Inc. of Santa Clara, California (``Arista'') to terminate the above-captioned modification proceeding concerning a limited exclusion order and a cease and desist order issued against Arista in Inv. No. 337-TA-945. The modification proceeding is terminated in its entirety.

Federal Register, Volume 83 Issue 182 (Wednesday, September 19, 2018)

[Federal Register Volume 83, Number 182 (Wednesday, September 19, 2018)]
[Notices]
[Pages 47350-47351]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-20363]


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INTERNATIONAL TRADE COMMISSION

[Investigation No. 337-TA-945]


Certain Network Devices, Related Software and Components Thereof 
(II) (Modification 2); Grant of Joint Motion To Terminate the 
Modification Proceeding Based on a Settlement Agreement; Termination of 
the Modification Proceeding in Its Entirety

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 grant a joint motion of complainant Cisco 
Systems, Inc. of San Jose, California (``Cisco'') and respondent Arista 
Networks, Inc. of Santa Clara, California (``Arista'') to terminate the 
above-captioned modification proceeding concerning a limited exclusion 
order and a cease and desist order issued against Arista in Inv. No. 
337-TA-945. The modification proceeding is terminated in its entirety.

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. 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''); 6,377,577 (``the '577 patent''); 7,460,492 
(``the '492 patent''); 7,061,875 (``the '875 patent''); 7,224,668 
(``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 
certain claims 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 certain claims of the '668 
patent unpatentable based on certain combinations of prior art not 
presented in the Commission investigation. Both decisions affected the 
claims upon which the Commission found a violation of section 337.
    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,

[[Page 47351]]

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.
    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 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).
    On June 26, 2018, the Commission accepted the ALJ's recommended 
determination finding no infringement with respect to the '577 patent 
and determined to modify the remedial orders to exempt Arista's 
redesigned products that were the subject of the modification 
proceeding. The Commission also determined to suspend the modification 
proceeding as to the '668 patent. The '577 patent expired on June 30, 
2018.
    On August 27, 2018, the Federal Circuit granted a motion of the 
parties to voluntarily dismiss the consolidated appeal from the 
Commission's final determination on violation. Cisco Sys., Inc., Appeal 
No. 17-2289, Dkt. No. 121 (Aug. 27, 2018).
    On August 27, 2018, Cisco and Arista filed a joint motion to 
terminate the modification proceeding in its entirety pursuant to 
Commission Rule 210.21(b)(1) (19 CFR 210.21(b)(1)) based on a 
settlement agreement between the parties. The motion indicates that the 
Agreement fully resolves the disputed issues in the modification 
proceeding, that there are no other agreements, written or oral, 
express or implied, between them concerning the subject matter of this 
proceeding, and that the motion includes a public version of this 
Motion along with an accompanying public version of the Agreement. The 
motion also contends that termination of the modification proceeding 
will not adversely affect the public interest.
    The Commission has determined to grant the joint motion and 
terminate the modification proceeding in its entirety. We note that 
only the '668 patent remains in the modification proceeding.
    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: September 14, 2018.
Lisa Barton,
Secretary to the Commission.
[FR Doc. 2018-20363 Filed 9-18-18; 8:45 am]
 BILLING CODE 7020-02-P

47350 Federal Register / Vol. 83, No. 182 / Wednesday, September 19, 2018 / Notices

Application Available for Review and Dated: July 19, 2018. alleges violations of section 337 of the
Comment Amy Lueders, Tariff Act of 1930, as amended, 19
Regional Director, Southwest Region, U.S. U.S.C. 1337 (‘‘section 337’’), by reason
We invite local, state, Tribal, and Fish and Wildlife Service. of infringement of certain claims of U.S.
Federal agencies, and the public to [FR Doc. 2018–20351 Filed 9–18–18; 8:45 am] Patent Nos. 7,023,853 (‘‘the ’853
comment on the following application BILLING CODE 4333–15–P patent’’); 6,377,577 (‘‘the ’577 patent’’);
under the ICP, for incidentally taking 7,460,492 (‘‘the ’492 patent’’); 7,061,875
the Federally-listed American Burying- (‘‘the ’875 patent’’); 7,224,668 (‘‘the ’668
beetle. Please refer to the proposed INTERNATIONAL TRADE patent’’); and 8,051,211 (‘‘the ’211
permit number (TE98456C) when COMMISSION patent’’). The Complaint further alleges
requesting application documents and the existence of a domestic industry.
when submitting comments. Documents [Investigation No. 337–TA–945] The Commission’s Notice of
and other information the applicant Investigation named Arista as the
Certain Network Devices, Related respondent. The Office of Unfair Import
submitted are available for review, Software and Components Thereof (II)
subject to Privacy Act (5 U.S.C. 552a) Investigations (‘‘OUII’’) was also named
(Modification 2); Grant of Joint Motion as a party to the investigation. The
and Freedom of Information Act (5 To Terminate the Modification
U.S.C. 552) requirements. Commission terminated the
Proceeding Based on a Settlement investigation in part as to certain claims
Permit TE98456C Agreement; Termination of the of the asserted patents. Notice (Nov. 18,
Modification Proceeding in Its Entirety 2015) (see Order No. 38 (Oct. 27, 2015));
Applicant: Ponderosa Gathering, LLC, Notice (Dec. 1, 2015) (see Order No. 47
AGENCY: U.S. International Trade
Houston, TX. Commission. (Nov. 9, 2015)).
Applicant requests a permit for oil On June 11, 2016, the Patent Trial and
ACTION: Notice.
Appeal Board (‘‘PTAB’’) of the U.S.
and gas upstream and midstream
SUMMARY: Notice is hereby given that Patent and Trademark Office instituted
production, including oil and gas well
the U.S. International Trade separate inter partes review (‘‘IPR’’)
field infrastructure geophysical proceedings concerning the ’577 and
exploration (seismic) and construction, Commission has determined grant a
joint motion of complainant Cisco ’668 patents. Arista Networks, Inc. v.
maintenance, operation, repair, and Cisco Systems, Inc., Case IPR2016–
Systems, Inc. of San Jose, California
decommissioning, as well as oil and gas 00303 (regarding the ’577 patent); Arista
(‘‘Cisco’’) and respondent Arista
gathering, transmission, and Networks, Inc. v. Cisco Systems, Inc.,
Networks, Inc. of Santa Clara, California
distribution pipeline infrastructure (‘‘Arista’’) to terminate the above- Case IPR2016–00309 (regarding the ’668
construction, maintenance, operation, captioned modification proceeding patent).
repair, decommissioning, and concerning a limited exclusion order On May 4, 2017, the Commission
reclamation in Oklahoma. and a cease and desist order issued found a violation of section 337 with
against Arista in Inv. No. 337–TA–945. respect to certain of the asserted claims
Public Availability of Comments of the ’577 and ’668 patents. Notice
The modification proceeding is
Written comments we receive become terminated in its entirety. (May 4, 2017); 82 FR 21827–29 (May 10,
2017); see also Notice of Correction
part of the public record associated with FOR FURTHER INFORMATION CONTACT:
(May 30, 2017); 82 FR 25811 (June 5,
this action. Before including your Megan M. Valentine, Office of the 2017). The Commission issued a limited
address, phone number, email address, General Counsel, U.S. International exclusion order (‘‘LEO’’) and a cease
or other personal identifying Trade Commission, 500 E Street SW, and desist order (‘‘CDO’’) against Arista.
information in your comment, you Washington, DC 20436, telephone (202) Id. The Commission did not find a
should be aware your entire comment— 708–2301. Copies of non-confidential violation with respect to the ’853, ’875,
including your personal identifying documents filed in connection with this ’492, and ’211 patents. Id.
information—may be made publicly investigation are or will be available for On May 25, 2017, the PTAB issued its
available at any time. While you can inspection during official business final written decision finding certain
request in your comment that we hours (8:45 a.m. to 5:15 p.m.) in the claims of the ’577 patent unpatentable
withhold your personal identifying Office of the Secretary, U.S. based on prior art not presented in the
information from public review, we International Trade Commission, 500 E Commission investigation. On June 1,
cannot guarantee that we will be able to Street SW, Washington, DC 20436, 2017, the PTAB issued its final written
do so. All submissions from telephone (202) 205–2000. General decision finding certain claims of the
organizations or businesses, and from information concerning the Commission ’668 patent unpatentable based on
may also be obtained by accessing its certain combinations of prior art not
individuals identifying themselves as
internet server at https://www.usitc.gov. presented in the Commission
representatives or officials of
The public record for this investigation investigation. Both decisions affected
organizations or businesses, will be may be viewed on the Commission’s
made available for public disclosure in the claims upon which the Commission
electronic docket (EDIS) at https:// found a violation of section 337.
their entirety. edis.usitc.gov. Hearing-impaired On June 30, 2017, Cisco filed a notice
Authority persons are advised that information on of appeal with the United States Court
this matter can be obtained by of Appeals for the Federal Circuit
amozie on DSK3GDR082PROD with NOTICES1

We provide this notice under the contacting the Commission’s TDD (‘‘Federal Circuit’’), seeking review of
ESA, section 10(c) (16 U.S.C. 1531 et terminal on (202) 205–1810. the Commission’s finding of no
seq.) and its implementing regulations SUPPLEMENTARY INFORMATION: The violation as to the ’853, ’875, ’492, and
(50 CFR 17.22) and the National Commission instituted this investigation ’211 patents. Cisco Sys., Inc. v. Int’l
Environmental Policy Act (42 U.S.C. on January 27, 2015, based on a Trade Comm’n, Appeal No. 17–2289.
4321 et seq.) and its implementing Complaint filed by Cisco. 80 FR 4313– On July 21, 2017, Arista filed a notice
regulations (40 CFR 1506.6). 14 (Jan. 27, 2015). The Complaint of appeal with the Federal Circuit,

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Federal Register / Vol. 83, No. 182 / Wednesday, September 19, 2018 / Notices 47351

seeking review of the Commission’s On April 5, 2018, the Commission DEPARTMENT OF JUSTICE
finding of violation as to the ’577 and determined to modify the remedial
’668 patents. Arista Networks, Inc. v. orders to suspend enforcement of those Drug Enforcement Administration
Int’l Trade Comm’n, Appeal No. 17– orders with respect to the ’668 patent.
2336. On August 3, 2017, the Federal Sharon C. Worosilo, M.D., Decision
Notice (Apr. 5, 2018); Comm’n Order
Circuit consolidated the Arista and and Order
(Apr. 5, 2018).
Cisco appeals. Cisco Sys., Inc. v. Int’l On February 7, 2018, the Acting
On June 26, 2018, the Commission
Trade Comm’n, Appeal No. 17–2289, Assistant Administrator, Diversion
Dkt. No. 20. accepted the ALJ’s recommended
determination finding no infringement Control Division, Drug Enforcement
On August 25, 2017, Arista filed a Administration (DEA), issued an Order
motion with the Federal Circuit seeking with respect to the ’577 patent and
determined to modify the remedial to Show Cause to Sharon C. Worosilo,
to stay the Commission’s remedial M.D. (Registrant), who is registered in
orders pending resolution of the appeal orders to exempt Arista’s redesigned
Somerset and East Brunswick, New
on the merits. On September 22, 2017, products that were the subject of the
Jersey. The Show Cause Order proposed
the Federal Circuit denied this request modification proceeding. The
to revoke Registrant’s two DEA
‘‘subject to the condition that the Commission also determined to suspend Certificates of Registration, Nos.
product redesign on which Cisco relies the modification proceeding as to the BW8636219 and BW4026375, pursuant
to deny irreparable harm must be ’668 patent. The ’577 patent expired on to 21 U.S.C. 824(a)(3), on the ground
permitted to enter the country, without June 30, 2018. that she does not have authority to
being blocked by the Commission order On August 27, 2018, the Federal handle controlled substances in New
under review in this case, unless and Circuit granted a motion of the parties Jersey, the state in which she is
until Commission proceedings are to voluntarily dismiss the consolidated registered with the DEA, and to deny
initiated and completed to produce an appeal from the Commission’s final any applications for renewal or
enforceable determination that such a determination on violation. Cisco Sys., modification and any applications for
redesign is barred by the order here Inc., Appeal No. 17–2289, Dkt. No. 121 any other DEA registrations. GX 2
under review or by a new or amended (Order to Show Cause), at 1.
(Aug. 27, 2018).
order.’’ Cisco Sys, Inc. v. ITC; Arista With respect to the Agency’s
Networks, Inc. v. ITC, Appeal Nos. On August 27, 2018, Cisco and Arista jurisdiction, the Show Cause Order
2017–2289, –2351, Order at 3 (Fed. Cir. filed a joint motion to terminate the alleged that Registrant is registered with
Sept. 22, 2017). modification proceeding in its entirety the DEA as a practitioner authorized to
On September 27, 2017, Cisco pursuant to Commission Rule handle controlled substances in
petitioned for a modification proceeding 210.21(b)(1) (19 CFR 210.21(b)(1)) based schedules II through V under two DEA
to determine whether Arista’s on a settlement agreement between the Certificate of Registrations: No.
redesigned switches infringe the patent parties. The motion indicates that the BW4026375 at the registered address of
claims that are the subject of the LEO Agreement fully resolves the disputed 49 Veronica Avenue, Somerset, New
and CDO issued in this investigation issues in the modification proceeding, Jersey, and No. BW8636219, at the
and for modification of the remedial that there are no other agreements, registered address of 620 Cranbury
orders to specify the status of these written or oral, express or implied, Road, Suite #115, East Brunswick, New
redesigned products. between them concerning the subject Jersey. Id. at 2. The Order stated that
On November 1, 2017, the matter of this proceeding, and that the both of Registrant’s registrations were
Commission instituted the modification motion includes a public version of this due to expire on May 31, 2018. Id.
proceeding. 82 FR 50678 (Nov. 1, 2017). Motion along with an accompanying Regarding the substantive grounds for
On November 7, 2018, the Commission public version of the Agreement. The the proceeding, the Show Cause Order
issued a notice clarifying that OUII is motion also contends that termination specifically alleged that the New Jersey
not named as a party in the modification of the modification proceeding will not State Board of Medical Examiners
proceeding. 82 FR 52318 (Nov. 13, adversely affect the public interest. issued an Order of Temporary
2017). Suspension ‘‘suspending [her] New
On February 14, 2018, the Federal The Commission has determined to Jersey medical license.’’ ‘‘Consequently,
Circuit summarily affirmed the PTAB’s grant the joint motion and terminate the the DEA must revoke [her] DEA
decision finding the claims of the ’668 modification proceeding in its entirety. registrations based on [her] lack of
patent unpatentable. Cisco Systems, Inc. We note that only the ’668 patent authority to handle controlled
v. Arista Networks, Inc., Appeal No. 17– remains in the modification proceeding. substances in the State of New Jersey.’’
2384, Order (Feb. 14, 2018). The Court The authority for the Commission’s Id. at 2, citing 21 U.S.C. 824(a)(3) and
issued the mandate on March 23, 2018. determination is contained in section 21 CFR 1301.37(b).
Id., Dkt. No. 54. 337 of the Tariff Act of 1930, as The Show Cause Order then notified
On March 23, 2018, the ALJ issued a amended (19 U.S.C. 1337), and in part Registrant of her right to request a
recommended determination in the 210 of the Commission’s Rules of hearing on the allegations, or to submit
modification proceeding (‘‘MRD’’), Practice and Procedure (19 CFR part a written statement in lieu of a hearing,
finding that Arista’s redesigned 210). the procedure for doing either, and the
products infringe the relevant claims of consequence for failing to elect either
the ’668 patent but do not infringe the By order of the Commission. option. Id. at 2, citing 21 CFR 1301.43.
amozie on DSK3GDR082PROD with NOTICES1

relevant claims of the ’577 patent. MRD Issued: September 14, 2018. It also notified her of her right to submit
(Mar. 23, 2018). Also on March 23, Lisa Barton, a corrective action plan in accordance
2018, the ALJ issued an order denying Secretary to the Commission. with 21 U.S.C. 824(c). Id. at 2–3.
Arista’s motion to stay the modification [FR Doc. 2018–20363 Filed 9–18–18; 8:45 am]
On February 15, 2018, two DEA
proceedings or to stay the remedial Diversion Investigators, accompanied by
BILLING CODE 7020–02–P
orders with respect to the ’668 patent. a Task Force Officer, personally served
Order No. 20 (Mar. 23, 2018). Registrant with the Order to Show

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Document Created: 2018-09-19 02:55:08
Document Modified: 2018-09-19 02:55:08

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		83 FR 47350