Arista Net 2 Works, Inc. v. Itc , 873 F.3d 1354 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
CISCO SYSTEMS, INC.,
Appellant
v.
INTERNATIONAL TRADE COMMISSION,
Appellee
---------------------------------------------------------------------------------
ARISTA NETWORKS, INC.
Appellant
v.
INTERNATIONAL TRADE COMMISSION,
Appellee
______________________
2016-2563, 2016-2539
______________________
Appeals from the United States International Trade
Commission in Investigation No. 337-TA-944.
______________________
Decided: September 27, 2017
______________________
JOHN C. O'QUINN, Kirkland & Ellis LLP, Washington,
DC, argued for appellant Cisco Systems, Inc. Also repre-
sented by JASON M. WILCOX; DENNIS J. ABDELNOUR,
2 ARISTA NETWORKS, INC. v. ITC
Chicago, IL; ADAM R. ALPER, San Francisco, CA; STEVEN
CHERNY, New York, NY; MICHAEL W. DE VRIES, Los
Angeles, CA; PAUL M. BARTKOWSKI, Adduci, Mastriani &
Schaumberg, LLP, Washington, DC.
MATTHEW D. POWERS, Tensegrity Law Group, LLP,
Redwood City, CA, argued for appellant Arista Networks,
Inc. Also represented by WILLIAM P. NELSON; MICHAEL J.
MCKEON, RUFFIN B. CORDELL, LAUREN ANN DEGNAN,
LINHONG ZHANG, Fish & Richardson, PC, Washington,
DC; BRIAN P. BOYD, Atlanta, GA.
AMANDA PITCHER FISHEROW, Office of the General
Counsel, United States International Trade Commission,
Washington, DC, argued for appellee. Also represented by
WAYNE W. HERRINGTON, SIDNEY A. ROSENZWEIG, DOMINIC
L. BIANCHI.
______________________
Before REYNA, SCHALL, and WALLACH, Circuit Judges.
REYNA, Circuit Judge.
The International Trade Commission entered a lim-
ited exclusion order against Arista Networks, Inc. based
on its final determination that Arista infringed three of
Cisco Systems, Inc.’s patents. The Commission also
determined that Arista did not infringe two other Cisco
patents. The exclusion order excluded entry into the
United States imports of certain network devices, related
software, and components thereof. Arista appeals the
Commission’s infringement determination and the scope
of the limited exclusion order. Cisco cross-appeals the
Commission’s noninfringement determination. Finding
no error in the Commission’s final determination or
exclusion order, we affirm.
ARISTA NETWORKS, INC. v. ITC 3
BACKGROUND
A. Procedural History
In January 2015, the Commission instituted a § 337
investigation based on Cisco’s complaint alleging that
Arista’s imports of certain network devices, related soft-
ware, and components thereof infringed six of its pa-
tents. 1 J.A. 501–02; 19 U.S.C. § 1337 (2012). In February
2016, an Administrative Law Judge (ALJ) issued a final
initial determination finding a § 337 violation with re-
spect to three patents: the ’537 patent, ’592 patent, and
’145 patent. The ALJ’s final initial determination found
no § 337 violation based on the ’597 patent and ’164
patent. The ’296 patent had previously been terminated
from the investigation. Cisco and Arista filed petitions for
review before the Commission.
The Commission agreed to review the ALJ’s final ini-
tial determination. In June 2016, the Commission issued
its final determination. The Commission determined that
Arista infringed the asserted claims of the ’537 patent,
’592 patent, and ’145 patent, and did not infringe the
asserted claims of the ’597 patent and ’164 patent. J.A.
502. Based on this finding, the Commission entered a
limited exclusion order against imports by Arista of
“certain network devices, related software and compo-
nents thereof.” J.A. 502–03.
Arista appeals the Commission’s claim construction of
a term in the ’537 patent and the scope of the limited
1 Cisco’s complaint alleged infringement of certain
claims of U.S. Patent No. 7,162,537 (“’537 patent”); U.S.
Patent No. 8,356,296 (“’296 patent”); U.S. Patent No.
7,290,164 (“’164 patent”); U.S. Patent No. 7,340,597 (“’597
patent”); U.S. Patent No. 6,741,592 (“’592 patent”); and
U.S. Patent No. 7,200,145 (“’145 patent”).
4 ARISTA NETWORKS, INC. v. ITC
exclusion order. Cisco cross-appeals the Commission’s
noninfringement finding with respect to the ’597 patent.
B. Technology
1. ’537 Patent
The ’537 patent relates to a system and method of
managing data in network devices. J.A. 903 at Abstract.
Network devices, like routers or switches, have an operat-
ing system that controls the system’s functions. Network
devices use different specialized subsystems to perform
the functions related to routing network traffic. In some
prior art network devices, different subsystems carried
out each network function, which required multiple
dependencies between the subsystems. J.A. 912 at col. 1
ll. 37–40. These multiple dependencies made common
transactions cumbersome and unnecessarily complicated,
increasing the time required to design and develop vari-
ous subsystems. J.A. 912 at col. 1 l. 65–col. 2 l. 3.
The ’537 patent discloses a way to solve this multiple-
dependency problem. The ’537 patent employs a central-
ized database that allows each subsystem to be modular
(i.e., capable of being easily added or removed from the
network) and to operate independently to carry out its
specialized functions. J.A. 913 at col. 3 ll. 13–38, col. 4 ll.
11–19. The centralized database is referred to as SysDB.
Cisco asserted claims 1, 2, 8–11, and 17–19 of the ’537
patent. Claim 19 is representative of the claims and
recites:
19. In a router device having a processor and
memory, a router operating system executing
within said memory comprising:
(a) a database subsystem;
(b) a plurality of client subsystems, each opera-
tively coupled for communication to said database
subsystem, one of said client subsystems config-
ARISTA NETWORKS, INC. v. ITC 5
ured as a managing subsystem to externally man-
age router data upon issuing a management re-
quest to said database subsystem; and
(c) a database operatively coupled to said database
subsystem, said database configured to store rout-
er configuration data and delegate management of
router configuration data to a management sub-
system that requests to manage router configura-
tion data, said router configuration data managed
by said database system and derived from config-
uration commands supplied by a user and execut-
ed by a router configuration subsystem before
being stored in said database.
J.A. 920 at col. 18 ll. 21–39.
2. ’597 Patent
The ’597 patent generally relates to the field of infor-
mation networks, and a method and apparatus for secur-
ing a communications device using a logging module. The
patent explains that prior attempts to develop flexible and
secure logging modules were vulnerable to security at-
tacks. An attacker could, for example, disable a security
device by changing its configuration and then proceed to
attack the now-defenseless network device. J.A. 14342 at
col. 2 ll. 16–19.
The ’597 patent describes a logging module that de-
tects and communicates information regarding a change
to a configuration of a subsystem. J.A. 14342 at col. 2 ll.
34–38. The logging module thereby can provide an indi-
cation whenever an attacker attempts to circumvent the
security of the subsystem. J.A. 14342 at col. 2 ll. 40–42.
Cisco asserted claims 1, 14, 15, 29, 39, 63, 64, and 71–
73 of the ’597 patent. Claim 1 is representative of the
claims and recites:
1. An apparatus comprising:
6 ARISTA NETWORKS, INC. v. ITC
a communications device comprising:
a subsystem; and
a logging module, coupled to said subsys-
tem, and configured to detect a change to
a configuration of said subsystem of said
communications device, and communicate
information regarding said change to said
configuration of said subsystem of said
communications device.
J.A. 14349 at col. 16 ll. 44–53.
3. Accused Devices
Arista sells network switches that are typically em-
ployed in computer data centers. Switches generally
connect different devices to networks and facilitate data
routing. Arista sells two types of switches, fixed and
modular, and both types employ a software system called
“Extensible Operating System,” or “EOS.” Arista Appel-
lant Br. 4. EOS includes a number of “agents” (software
routines) that each function to handle a specific task. The
agents coordinate with each other through a centralized
database called “SysDB” (also the name of the ’537 pa-
tent’s centralized database) which is in charge of main-
taining and managing configuration information for each
agent. ITC Appellee Br. 13.
Arista’s EOS software also includes a process manag-
er called “ProcMgr.” ProcMgr is a software process that
starts, stops, and restarts the agents based on the con-
tents of directories in the EOS file system. In this way,
ProcMgr monitors which agents are running.
At the time of the Commission hearing, the switches
Arista imported were fully assembled, but did not have
EOS software installed. Arista Appellant Br. 15. Though
Arista loaded EOS software abroad and tested the switch-
es with EOS software installed, Arista removed the
ARISTA NETWORKS, INC. v. ITC 7
software before importation. ITC Appellee Br. 15. Arista
then reloaded the software domestically onto these “blank
switches.” Arista also imports a small number of switch
components. Id. at 16.
C. Commission Decision
The Commission affirmed the ALJ’s final initial de-
termination that found Arista infringed the ’537, ’592, and
’145 patents and did not infringe the ’597 and ’164 pa-
tents.
1. Claim Construction
The Commission addressed claim construction of the
disputed term of the ’537 patent:
said router configuration data managed by said
database system and derived from configuration
commands supplied by a user and executed by a
router configuration subsystem before being
stored in said database
J.A. 512–14. The parties’ dispute centered on whether
router configuration data or user-supplied commands
were “being stored in said database.” The Commission
determined that the proper construction “requires the
storage of router configuration data” as opposed to user-
supplied commands. J.A. 513.
In support, the Commission relied on intrinsic evi-
dence. The Commission cited portions of the specification
that show the focus of the ’537 patent is to store and
manage configuration data. J.A. 513 (citing J.A. 903 at
Title and Abstract; J.A. 913 at col. 3 ll. 13–15; J.A. 913 at
col. 3 l. 64–col. 4 l. 5; J.A. 914 at col. 6 ll. 26–28; J.A. 915
at col. 7 ll. 30–32; J.A. 915 at col. 7 l. 65–col. 8 l. 3; J.A.
915 at col. 8 ll. 7–9; J.A. 915 at col. 8 ll. 46–52).
The Commission also determined that the prosecution
history supported its construction. Arista argued that the
applicant distinguished a prior art reference by stating
8 ARISTA NETWORKS, INC. v. ITC
that “[the prior art reference] fails to disclose . . . execut-
ing configuration commands before storing them in a
database,” which would imply that the claimed invention
requires storing configuration commands in a database.
J.A. 513. The Commission disagreed, reasoning that the
applicant was actually distinguishing the prior art refer-
ence by arguing the prior art reference did not disclose
configuration commands at all. J.A. 513–14.
2. Infringement of the ’537 Patent
The Commission determined that under its claim con-
struction, Arista’s accused products directly infringed the
asserted claims of the ’537 patent. J.A. 518.
The Commission also addressed indirect infringement
of the ’537 patent. First, regarding induced infringement,
the Commission found that Arista’s sale and promotion of
its accused products, including the blank switches, in-
duced infringement of the ’537 patent. Specifically as to
switch hardware, the Commission determined that the
switch hardware was designed to run the infringing EOS
software, thus providing a basis for induced infringement.
J.A. 528.
Second, as to contributory infringement, the Commis-
sion determined that Arista’s blank switches were a
material part of the invention. J.A. 526–27. The Com-
mission expressly did not reach the question of whether
the components of the blank switches were material,
finding instead that the components would be covered by
the Commission’s infringement finding if Arista attempt-
ed to circumvent the Commission’s exclusion order:
Although Arista argues that each of the imported
components must also be material to the inven-
tion, the Commission need not reach this issue. If
Arista attempts to circumvent a Commission rem-
edy by importing only the components of the ac-
cused products for reassembly into complete
ARISTA NETWORKS, INC. v. ITC 9
functional switches, it would still be in violation of
[19 U.S.C. § 1337] because the Commission finds
that the Blank Switches and the fully assembled
complete switches indirectly infringe and the ac-
cused switch components are covered by this find-
ing.
J.A. 527.
3. Noninfringement of the ’597 Patent
The Commission affirmed the ALJ’s finding that Aris-
ta’s accused products did not infringe the ’597 patent.
J.A. 541–44. The ’597 patent requires a system to “detect
a change to a configuration of [a] subsystem.” J.A. 541.
The Commission determined that the design of Arista’s
software did not allow the relevant subsystem, ProcMgr,
to “detect” another subsystem’s configuration, but rather
it “infer[red]” whether that subsystem was functioning.
J.A. 542. Specifically, ProcMgr did “not have access to
each agent’s configuration.” J.A. 541. Accordingly, the
Commission determined that Arista’s products did not
infringe the ’597 patent.
4. Exclusion Order
Having found a violation of § 337, the Commission en-
tered remedial orders against Arista. J.A. 567–80. Spe-
cifically, the Commission ordered that “[n]etwork devices,
related software and components thereof that infringe”
certain claims of the ’537 patent, ’592 patent, and ’145
patent “are excluded from entry for consumption into the
United States.” J.A. 568.
Arista appeals the Commission’s claim construction of
the ’537 patent and the scope of the exclusion order. Cisco
cross-appeals regarding the Commission’s ’597 patent
noninfringement determination. We have jurisdiction
under 28 U.S.C. § 1295(a)(6) (2012).
STANDARD OF REVIEW
10 ARISTA NETWORKS, INC. v. ITC
We review the Commission’s claim construction de-
terminations de novo except for subsidiary facts based on
extrinsic evidence, which we review for clear error.
DeLorme Publ’g Co. v. Int’l Trade Comm’n, 805 F.3d 1328,
1331 (Fed. Cir. 2015).
The Commission’s legal determinations are reviewed
de novo and factual findings are reviewed for substantial
evidence. Spansion, Inc. v. Int’l Trade Comm’n, 629 F.3d
1331, 1343 (Fed. Cir. 2010). A finding of infringement is a
factual determination reviewed for substantial evidence.
Id. at 1349. “Under the substantial evidence standard, a
reviewing court must consider the record as a whole,
including that which fairly detracts from its weight, to
determine whether there exists such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.” Id. at 1343–44 (internal quotation marks
and citation omitted).
We affirm the Commission’s choice of remedy unless it
is arbitrary, capricious, an abuse of discretion or other-
wise not in accordance with law. Hyundai Elecs. Indus.
Co. v. Int’l Trade Comm’n, 899 F.2d 1204, 1207–08 (Fed.
Cir. 1990).
DISCUSSION
As discussed below, the Commission properly con-
strued the ’537 patent and correctly crafted the limited
exclusion order. The Commission’s ’597 patent nonin-
fringement determination is supported by substantial
evidence.
A. Claim Construction of the ’537 Patent
Claims 1, 10, and 19 of the ’537 patent recite the rele-
vant claim term:
said router configuration data managed by said
database system and derived from configuration
commands supplied by a user and executed by a
ARISTA NETWORKS, INC. v. ITC 11
router configuration subsystem before being
stored in said database.
J.A. 919–20. The parties dispute whether “router config-
uration data” or “commands supplied by a user” are
“stored in said database.” We affirm the Commission’s
construction requiring “router configuration data” to be
“stored in said database.”
“[T]he words of a claim are generally given their
ordinary and customary meaning.” Phillips v. AWH
Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc)
(internal quotation marks and citation omitted). The
ordinary meaning may be determined by reviewing vari-
ous sources, such as the claims themselves, the specifica-
tion, the prosecution history, dictionaries, and any other
relevant evidence. Ruckus Wireless, Inc. v. Innovative
Wireless Sols., LLC, 824 F.3d 999, 1002–03 (Fed. Cir.
2016) (citation omitted). We depart from the ordinary
meaning when patentees act as their own lexicographers
or disavow the full scope of a claim term in the specifica-
tion or during prosecution. Poly-Am., L.P. v. API Indus.,
Inc., 839 F.3d 1131, 1136 (Fed. Cir. 2016). The standard
for disavowal is exacting, requiring clear and unequivocal
evidence that the claimed invention includes or does not
include a particular feature. Id. Ambiguous language
cannot support disavowal. Id. (citing Omega Eng’g, Inc. v.
Raytek Corp., 334 F.3d 1314, 1324 (Fed. Cir. 2003)).
Arista challenges the Commission’s claim construc-
tion on two grounds. Arista’s first challenge to the Com-
mission’s construction is a grammatical one. Arista
argues that the prepositional phrase “before being stored
in said database” acts as an adverb modifying the verb
“executed.” Thus, Arista argues, the thing “being stored”
is the subject of the verb “executed,” namely, the configu-
ration commands. We do not find this argument persua-
sive in view of the specification and claims.
12 ARISTA NETWORKS, INC. v. ITC
The ’537 patent claims and specification support the
Commission’s construction. For example, representative
claim 19 requires that the referenced database be “config-
ured to store router configuration data,” J.A. 920 at col. 18
ll. 32–33, but does not require that the database be con-
figured to store user-supplied commands. This suggests
that the configuration data must be stored, not the user-
supplied commands.
The specification contains ample support for the
Commission’s construction. For example, the Title indi-
cates that the ’537 patent is directed to “managing router
configuration data.” J.A. 903. Likewise, the Abstract
indicates that the system is directed to “externally man-
aging router configuration data.” Id. Further, the specifi-
cation expressly addresses storage of configuration data:
The config subsystem 28 carries out the operation
of receiving configuration commands for a user of
the router, executing the configuration command
received from the user and providing configura-
tion information to the user of the router upon re-
quest from the user, among other things. As
described above, this router configuration infor-
mation is stored and managed by the sysDB 26 in
the sysDB tree 42.
J.A. 915 at col. 8 ll. 46–53 (emphasis added). In contrast,
storage of user-supplied commands is not taught. The
specification and claims read together therefore require
storage of router configuration data, not user-supplied
commands.
Arista’s second challenge to the Commission’s con-
struction is based on the prosecution history. During
prosecution, the applicant argued that a certain piece of
prior art failed to teach the claimed invention because the
prior art failed “to disclose teach or otherwise suggest
executing configuration commands before storing them in
a database.” J.A. 1564. Thus, Arista argues, the appli-
ARISTA NETWORKS, INC. v. ITC 13
cant understood that the invention stored user-supplied
commands and that meaning should control. But the
applicant later distinguished this prior art as failing to
teach commands at all, whether or not they are stored:
“Applicant submits that structures here are not com-
mands, and can in no way be construed to be equivalent
to router configuration commands.” J.A. 1565. Indeed,
the applicant later argued that the prior art reference
failed to teach that “execution of user-supplied configura-
tion commands results in configuration data that is stored
in a database,” as opposed to storing user-supplied com-
mands. Id. (emphasis added). Contrary to Arista’s argu-
ment, the applicant thus did not clearly state that the
claimed invention required storing user-supplied com-
mands. This ambiguous language from the prosecution
history cannot form the basis of a disavowal of claim
scope. See Omega, 334 F.3d at 1324. We thus affirm the
Commission’s claim construction.
B. Limited Exclusion Order
The Commission’s limited exclusion order prohibits
importation of “network devices, related software and
components thereof” that infringe the ’537 patent, ’592
patent, and ’145 patent. J.A. 568. Arista’s main chal-
lenge is that the Commission did not make specific find-
ings that the components of its accused products
contribute to or induce infringement of the ’537 patent,
and thus the Commission exceeded its authority to regu-
late “articles that infringe.” 19 U.S.C. § 1337(a)(1)(B)(i).
We disagree. The Commission sufficiently articulated
its findings that the components of Arista’s accused
products induce infringement of the ’537 patent. The
Commission found that Arista’s “switch hardware is
designed to run the EOS software containing Sys[DB] and
is run each time EOS is booted.” J.A. 528. Although the
Commission opinion does not separately define “switch
hardware,” the ALJ’s final initial determination does:
14 ARISTA NETWORKS, INC. v. ITC
“Switch hardware . . . includes all the individual compo-
nents, such as a processor, memory, CPU card, chassis,
switch card, and fan modules[.]” J.A. 682. The Commis-
sion expressly adopted the ALJ’s final initial determina-
tion findings that were consistent with its opinion. J.A.
507. Thus the exclusion order properly bars the importa-
tion of components of Arista’s infringing products. See
Suprema, Inc. v. Int’l Trade Comm’n, 796 F.3d 1338,
1352–53 (Fed. Cir. 2015) (en banc) (“We hold that the
Commission’s interpretation that the phrase ‘articles that
infringe’ covers goods that were used by an importer to
directly infringe post-importation as a result of the seller’s
inducement is reasonable.”).
We note that the Commission has “broad discretion in
selecting the form, scope, and extent of [a] remedy, and
judicial review of its choice of remedy necessarily is
limited.” Hyundai Elecs., 899 F.2d at 1209 (quoting
Viscofan, S.A. v. Int’l Trade Comm’n, 787 F.2d 544, 548
(Fed. Cir. 1986)). Courts will not interfere in the Com-
mission’s remedy determination except when “the remedy
selected has no reasonable relation to the unlawful prac-
tices found to exist.” Id. (quoting Viscofan, 787 F.2d at
548). “[I]f the Commission has considered the relevant
factors and not made a clear error of judgment, we affirm
its choice of remedy.” Id. Blocking imports of articles
that induce patent infringement has a reasonable rela-
tionship to stopping unlawful trade acts. Suprema, 796
F.3d at 1352–53. Accordingly, we see no error in the
Commission’s limited exclusion order.
As the Commission found that Arista’s components
induce infringement of the ’537 patent, we do not address
Arista’s arguments related to contributory infringement.
The Commission also found that the components of Aris-
ta’s products induce infringement of the ’592 patent and
’145 patent. J.A. 566.047. This finding is not challenged
on appeal, and provides another basis to affirm the Com-
mission’s limited exclusion order.
ARISTA NETWORKS, INC. v. ITC 15
C. Noninfringement of the ’597 Patent
Cisco’s cross-appeal challenges whether substantial
evidence supports the Commission’s determination that
Arista’s accused products do not infringe the asserted
claims of the ’597 patent.
The asserted claims require that the accused system
“detect” a configuration change. The Commission deter-
mined that Arista’s accused products did not “detect”
another subsystem’s configuration, but rather “infer[red]”
whether that subsystem was functioning. J.A. 542.
Cisco argues that inferring is a form of detection, and
therefore Arista’s products infringe. The Commission,
however, had before it evidence that showed that the
accused functionality, ProcMgr, has no access to a subsys-
tem’s configuration, and thus cannot definitely know
whether a configuration has changed. For example, the
ProcMgr system does “not have access to each agent’s
configuration. Instead, ProcMgr only determines the last
time the heartbeat file was updated.” J.A. 541. Evidence
showed that ProcMgr can only infer a change but it does
not know what the change was, only that a change may
have occurred. J.A. 6070–71. Where, like here, there is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion,” we affirm the
Commission’s noninfringement determination. Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Because
we affirm the Commission’s finding of no violation with
respect to the ’597 patent, we do not reach Arista’s “alter-
native ground” for affirmance that the Commission should
have reversed the ALJ’s determination that assignor
estoppel barred Arista from challenging the ’597 patent
under 35 U.S.C. § 101.
CONCLUSION
16 ARISTA NETWORKS, INC. v. ITC
We have considered the remainder of the parties’ ar-
guments and do not find them persuasive. The Commis-
sion’s determination is affirmed.
AFFIRMED
COSTS
No costs.