Update: On Monday, Sept. 10, the Federal Circuit granted Cisco’s and Arista’s request to send the case back to Judge Freeman.
Do you remember a couple of years ago when Cisco Systems and Arista Networks had that big copyright showdown in San Jose? Bob Van Nest of Keker, Van Nest & Peters faced off with David Nelson of Quinn Emanuel Urquhart & Sullivan. Cisco’s John Chambers and Arista’s Jayshree Ullal testified. Silicon Valley media watched it all closely.
OK, now pretend none of that ever happened. Especially the jury’s verdict finding that Arista infringed, but that external factors other than Cisco’s creativity dictated the selection, arrangement and organization of phrases in Cisco’s command line interface.
That’s what Cisco and Arista are now asking U.S. District Judge Beth Labson Freeman and the Federal Circuit to do. It turns out that, as part of their $400 million settlement, the networking giants are seeking to vacate the judgment—one of the first to apply copyright’s “scenes-a-faire” defense in the software context. On Wednesday, Freeman indicated she’s willing to oblige.
The parties now have to persuade the Federal Circuit to send the case back to Freeman without issuing a ruling. The appellate court heard arguments in the case in June.
Quinn Emanuel partner Kathleen Sullivan and Keker partner Steven Hirsch emphasized in their joint request to the Federal Circuit that the settlement resolves multiple disputes across district courts, the International Trade Commission and the Patent Trial and Appeal Board. “It is in the overall public interest for the court to support parties in negotiating and reaching settlement, including where vacatur is contemplated as part of a settlement, and especially where vacatur is part of a settlement that will resolve multiple pending disputes,” they wrote to the court.
Just to say it, this is a 100 percent about-face from the parties’ initial public statement the day of the Aug. 6 settlement. “Arista and Cisco will continue to seek appellate court review of the scenes-a-faire verdict in the earlier trial regarding legal protection for user interfaces,” they said back then.
But seeking vacatur appears to have been the strategy all along. The parties’ initial term sheet governing the deal, made public this week, states, “The Parties will jointly approach the District Court with legal grounds for vacatur to attempt to persuade the Court to vacate the judgment to facilitate a global settlement of all matters.’”
The Federal Circuit on Monday granted Cisco’s and Arista’s request to abort the appeal and send the case back to Freeman.