ITC Declassifies Portions of Final Determination

by Jones Day

In re Certain Network Devices, Related Software and Components Thereof (I), Inv. No. 337-TA-944 (ITC Comm’n Apr. 19, 2017), is a surprisingly rare opinion addressing a common issue:  When should the ITC redact a portion of an opinion before it issues it to the public?

Cisco Systems, Inc. filed a § 337 complaint against Arista Networks, Inc. for infringing certain patents.  The Commission found that Arista violated § 337 as to some, but not all, of the patents.  At Arista’s request, portions of the underlying opinion were redacted.  Both parties appealed the decision to the Federal Circuit.  As part of the appeal, Cisco filed a motion with the Federal Circuit asking it to declassify portions of the Commission opinion.  Both Arista and the ITC opposed the motion.  The ITC argued that it should be making declassification decisions in the first instance.  The Federal Circuit agreed with the ITC and remanded the declassification question.

Pursuant to Commission Rule 201.6(a)(1), the ITC regularly redacts opinions to protect confidential information, but there is a surprising dearth of case law on the appropriate standard for determining when information is “confidential.”  Commission Rule 201.6(a)(1) provides a two-part test for determining whether business information is confidential.  First, the information must concern or relate to “information of commercial value.”  Second, disclosure of this information must either be “likely to have the effect of either impairing the Commission’s ability to obtain such information as is necessary to perform its statutory functions” or the disclosure must cause  “substantial harm” to a party.

Beyond that general regulation, there is little relevant law.  Arista asked the ITC to apply a three-part balancing test, which would consider (1) the need to reveal the information to the public; (2) the harm from such disclosure; and (3) the ITC’s interest.  Cisco argued for a common-law approach, with a “strong presumption” in favor of disclosure.  The Commission rejected both approaches, without setting out a specific test.

The parties also disagreed as to who bears the burden of proof.  The Commission agreed with Cisco that the burden is on the party requesting a redaction.  Commission Rule 210.5(f) allows the ITC to require the “parties [to] provide support in the record for their claim of confidentiality,” implying that the party seeking to have information designated as confidential is the one that has the burden to support their request.

The Commission then went through Arista’s proposed redactions, one by one, accepting some and declassifying others.  The Commission rejected some of Arista’s arguments as too generic or speculative, but, otherwise, it is hard to make generalizations about the Commission’s approach.


One of the advantages of the ITC is its strong administrative protective orders that preclude sharing of confidential business information.  Until recently, parties rarely had much reason to challenge another party’s confidentiality designations—and the issue would likely only arise if the agency itself refused to designate material as confidential.  However, the Federal Circuit recently updated its local rules to discourage including any confidential information in a brief and requiring a separate motion if a brief is going to contain more than fifteen words of confidential information.  See Fed. Cir. Local R. 28(d)(1)(A).  As a result, parties may be more likely to challenge confidentiality designations in the future—so that their appeal briefs do not need to marked “confidential” and so they do not need to file motions to allow confidential redactions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Jones Day | Attorney Advertising

Written by:

Jones Day

Jones Day on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.