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)

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, 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