McDermott Will & Emery

The US International Trade Commission (ITC) denied respondent’s emergency petitions to modify, suspend or rescind the ITC’s limited exclusion order and cease-and-desist order pending appeal of the Patent Trial and Appeal Board’s (PTAB’s) inter partes review final written decisions, which found unpatentable the claims of two patents previously held to be in violation by respondent under § 337. In re Certain Network Devices, Inv. No. 337-TA-945 (ITC, June 20, 2017).

The ITC instituted its investigation of Arista Networks’ devices based on a complaint filed by Cisco Systems, which alleged § 337 violations by way of infringement of six Cisco patents. The ITC found a violation of § 337 as to certain claims of two Cisco patents, and as a result issued a limited exclusion order and a cease-and-desist order regarding Arista Networks’ infringing devices.

Parallel to the ITC proceedings, the same two patents that formed the basis of the ITC’s § 337 violation findings were subject to inter partes review at the PTAB. Ultimately, the PTAB issued final written decisions finding the claims of both patents unpatentable. In light of the PTAB’s decisions, Arista Networks filed emergency petitions seeking the suspension or rescission of the ITC’s remedial orders pending appeal of the PTAB decisions.

The ITC denied Arista Networks’ emergency petitions, however, finding that “the PTAB’s final written decisions do not constitute a changed circumstance such that the remedial orders should be rescinded.” Specifically, the ITC noted that the legal status of those claims at issue would not change unless and until the US Patent and Trademark Office issued a certificate canceling the claims following the exhaustion of all appeals.