In the last weeks of December, five amicus briefs were submitted in support of Arista in its ongoing copyright infringement litigation with Cisco. The briefs provide a strong basis for the Federal Circuit to affirm the jury verdict in favor of Arista.
As previously discussed in DisCo, Arista and Cisco are competitors in the network switch market. In the operating system that controls its switches, Arista replicated roughly 500 Command Line Interface (CLI) commands of the over 15,000 CLI commands Cisco employed in its operating system. Each command consists of between two and four words. Cisco controls over 80% of the network switch market, and Arista, a newer entrant, used the Cisco commands it believed network engineers would expect to find in any switch.
Cisco sued for patent and copyright infringement. The patent claims were dismissed at an early stage of the litigation. Cisco argued to the jury that Arista infringed the copyright in the compilation of the 500 commands. In December 2016, the jury found in favor of Arista on the grounds of scenes a faire—a venerable doctrine under which courts deny protection to expression that is standard, stock or common to a particular topic or that necessarily follows from a common theme or setting. In May 2017, the district court rejected Cisco’s motion for a judgment as a matter of law, finding that substantial evidence had been introduced at trial to support the jury’s scenes a faire verdict.
Cisco appealed to the Federal Circuit, which has jurisdiction over the appeal because of Cisco’s patent claim, even though Cisco is not appealing that dismissal. In its brief, Cisco relied heavily on the Federal Circuit’s 2014 decision in Oracle v. Google, a case that is now back before the Federal Circuit. Cisco argued that its compilation of commands reflected great creativity and originality, and was not constrained by industry standards. In its brief opposing Cisco’s appeal, Arista listed the extensive evidence presented to the jury concerning the constraints operating on Cisco as it assembled the commands in its CLI. Arista also provided several alternative grounds for affirming the decision below, many of which were elaborated on in the amicus briefs.MORE »