Cisco v. Arista awaits a jury verdict under the Oracle v. Google shadow [Updated]

Just like Oracle—Cisco's small patent claim will ensure Federal Circuit review.

For the second time this year, two technology giants have clashed in a no-holds-barred legal contest, and the outcome is now in the hands of a Bay Area jury.

Cisco Systems claims that Arista Networks has infringed its intellectual property by engaging in "slavish copying" of its Command Line Interface (CLI), a system of prompts and displays that Cisco uses for controlling its routers and switches. Arista says it's protected by the doctrine of fair use.

The case has more than a passing similarity to the Oracle v. Google trial that took place in May. During that trial, Oracle tried to paint Google as an IP scofflaw for using parts of its Application Programming Interfaces, or APIs. It didn't work out, though, when the jury decided that Google's use of the APIs was justified by fair use.

Lawyers for both sides made their closing arguments yesterday. Cisco attorney David Nelson told the jury that Arista should be given $335 million in compensation, and he called the copying of the command line interface "blatant" and "intentional," according to reports in The Recorder and Law360.

Nelson pointed out that Arista advertised its switching equipment by telling customers it used 99.999 percent of Cisco's user-interface commands. He also said that most other companies in the networking industry don't use Cisco commands.

The two companies have been bitter rivals since the start. Arista was founded by former Cisco employees and grew to be a powerful player in the market for Internet switches, having grabbed 56.5 percent of that market, according to statistics published by Bloomberg in its backgrounder on the trial. Things got worse during the two-week trial, with Cisco Executive Chairman John Chambers taking the witness stand to call out his former colleagues as thieves.

"In my mind, they knew exactly what they were doing, and a phone call wouldn’t have helped,” Chambers testified last week. "It is hard to accuse people who are your friends—and they are still my friends—of stealing from you. But this was so blatant."

At earlier stages of the trial, Cisco has said it will seek more than $500 million. Even that massive sum isn't enough to make a big difference in the bottom line of a company like Cisco, which earned more than $12 billion in revenue in the most recent quarter. But it could destabilize the still much smaller Arista by making customers and investors think it's a risky bet. In August, Cisco GC Mark Chandler warned Arista customers that the company wouldn't be able to honor service contracts.

There's a wide-ranging set of legal disputes between the two companies, including a patent fight at the ITC—which recently found in favor of Cisco—and an antitrust complaint filed by Arista. This San Jose trial is the centerpiece of the disputes.

Choose your own appeal court

Just as in Oracle v. Google, lawyers representing Cisco and Arista have asked jurors to grapple with the question of what competitors are allowed to use, when key parts of a publicly promoted computer language are copyrighted.

Google built Android with millions of lines of its own code but still got sued over the small parts of code that were Oracle-owned Java APIs. In the first trial, US District Judge William Alsup ruled that APIs couldn't be copyrighted at all—but he was overturned by the US Court of Appeals for the Federal Circuit. Google was saved when a jury at the second trial ruled that using the (now copyrighted) APIs constituted "fair use."

Similarly, Arista isn't accused of grabbing any of the code that actually runs Cisco's switches. Rather, the company used about 500 commands from Cisco's CLI. Arista's lawyers say Cisco promoted CLI as the industry standard, and it was fine to use—until Arista became successful. They pointed jurors to a Dell product that used 1,600 CLI commands but didn't result in a lawsuit.

Given the facts, it's no surprise that the narrative themes of the Cisco v. Arista trial have also mirrored Oracle v. Google. Arista, represented by the same law firm that defended Google against Oracle, has argued that Cisco is trying to compete in the courtroom because it can't hack it in the marketplace. Cisco, meanwhile, argues that Arista succeeded only by taking illegal shortcuts.

And this is the second high-profile copyright case that will be moved out of the 9th Circuit and into the Federal Circuit, an appeals court that has historically been favorable for IP owners. The Federal Circuit has domain over all patent cases, and because Cisco v. Arista involves patent claims, the Federal Circuit will consider the whole case—even though the copyright part is the part that matters.

To some, this looks like Cisco might be gaming the system, throwing in a patent claim to get the appellate law it wants. There may be more cases like that in the future. UC Berkeley law professor Peter Menell argues in a forthcoming article that Congress needs to reform the jurisdictional rules that route such cases to the Federal Circuit in order to avoid forum shopping in software copyright cases.

"In my view, Cisco is seeking to benefit from the Federal Circuit’s misinterpretation of 9th Circuit law regarding APIs,” Menell said in an e-mail exchange with Ars. "By including a patent claim, despite the relatively small magnitude of Cisco’s patent damage request, Cisco ensured that the Federal Circuit, rather than the 9th Circuit, would have appellate jurisdiction over the far more valuable copyright causes of action. Although the Federal Circuit applies 9th Circuit law on copyright issues, the only real check on its fidelity to 9th Circuit jurisprudence is Supreme Court review, which is hard to come by."

The jury is in its second day of deliberations today, debating in the San Jose federal courthouse. A verdict could come at any time.

UPDATE: The jury came back with a verdict in Arista's favor this morning.