Yesterday was D-Day for Arista in their fight with Cisco over the SysDB patent. I’ve covered this a bit for Network Computing in the past, but I wanted to cover some new things here and put a bit more opinion into my thoughts.
Cisco Designates The Competition
As the great Stephen Foskett (@SFoskett) says, you always have to punch above your weight. When you are a large company, any attempt to pick on the “little guy” looks bad. When you’re at the top of the market it’s even tougher. If you attempt to fight back against anyone you’re going to legitimize them in the eye of everyone else wanting to take a shot at you.
Cisco has effectively designated Arista as their number one competitor by way of this lawsuit. Arista represents a larger threat that HPE, Brocade, or Juniper. Yes, I agree that it is easy to argue that the infringement constituted a material problem to their business. But at the same time, Cisco very publicly just said that Arista is causing a problem for Cisco. Enough of a problem that Cisco is going to take them to court. Not make Arista license the patent. That’s telling.
Also, Cisco’s route of going through the ITC looks curious. Why not try to get damages in court instead of making the ITC ban them from importing devices? I thought about this for a while and realized that even if there was a court case pending it wouldn’t work to Cisco’s advantage in the short term. Cisco doesn’t just want to prove that Arista is copying patents. They want to hurt Arista. That’s why they don’t want to file an injunction to get the switches banned. That could take years and involve lots of appeals. Instead, the ITC can just simply say “You cannot bring these devices into the country”, which effectively bans them.
Cisco has gotten what it wants short term: Arista is going to have to make changes to SysDB to get around the patent. They are going to have to ramp up domestic production of devices to get around the import ban. Their train of development is disrupted. And Cisco’s general counsel gets to write lots of posts about how they won.
Yet, even if Arista did blatantly copy the SysDB stuff and run with it, now Cisco looks like the 800-pound gorilla stomping on the little guy through the courts. Not by making better products. Not by innovating and making something that eclipses the need for software like this. No, Cisco won by playing the playground game of “You stole my idea and I’m going to tell!!!”
Arista’s Three-Edged Sword
Arista isn’t exactly coming out of this on the moral high ground either. Arista has gotten a black eye from a lot of the quotes being presented as evidence in this case. Ken Duda said that Arista “slavishly copied” Cisco’s CLI. There have been other comments about “secret sauce” and the way that SysDB is used. A few have mentioned to me privately that the copying done by Arista was pretty blatant.
Understanding is a three-edged sword: Your side, their side, and the truth.
Arista’s side is that they didn’t copy anything important. Cisco’s side is that EOS has enough things that have been copied that it should be shut down and burned to the ground. The truth lies somewhere in the middle of it all.
Arista didn’t copy everything from IOS. They hired people who worked on IOS and likely saw things they’d like to implement. Those people took ideas and ran with them to come up with a better solution. Those ideas may or may not have come from things that were worked on at Cisco. But if you hire a bunch of employees from a competitor, how do you ensure that their ideas aren’t coming from something they were supposed to have “forgotten”?
Arista most likely did what any other company in that situation would do: they gambled. Maybe SysDB was more copied that created. But so long as Arista made money and didn’t really become a blip on Cisco radar. That’s telling. Listen to this video, which starts at 4:40 and goes to about 6:40:
Doug Gourlay said something that has stuck with me for the last four years: “Everyone that ever set out to compete against Cisco and said, ‘We’re going to do it and be everything to everyone’ has failed. Utterly.”
Arista knew exactly which market they wanted to attack: 10Gig and 40Gig data center switches. They made the best switch they could with the best software they could and attacked that market with all the force they could muster. But, the gamble would eventually have to either pay off or come due. Arista had to know at some point that a strategy shift would bring them under the crosshairs of Cisco. And Cisco doesn’t forgive if you take what’s theirs. Even if, and I’m quoting from both a Cisco 10-K from 1996 and a 2014 Annual Report:
[It is] not economically practical or even possible to determine in advance whether a product or any of its components infringes or will infringe on the patent rights of others.
So Arista built the best switch they could with the knowledge that some of their software may not have been 100% clean. Maybe they had plans to clean it up later. Or iterate it out of existence. Who knows? Now, Arista has to face up to that choice and make some new ones to keep selling their products. Whether or not they intended to fight the 800-pound gorilla of networking at the start, they certainly stumbled into a fight here.
Tom’s Take
I’m not a lawyer. I don’t even pretend to be one. I do know that the fate of a technology company now rests in the hands of non-technical people that are very good and wringing nuance out of words. Tech people would look at this and shake their heads. Did Arista copy something? Probably? Was is something Cisco wanted copied? Probably not? Should Cisco have unloaded the legal equivalent of a thermonuclear warhead on them? Doubtful.
Cisco is punishing Arista to ensure no one every copies their ideas again. As I said before, the outcome of this case will doom the Command Line Interface. No one is going to want to tangle with Cisco again. Which also means that no one is going to want to develop things along the Cisco way again. Which means Cisco is going to be less relevant in the minds of networking engineers as REST APIs and other programming architectures become more important that remembering to type conf t every time.
Arista will survive. They will make changes that mean their switches will live on for customers. Cisco will survive. They get to blare their trumpets and tell the whole world they vanquished an unworthy foe. But the battle isn’t over yet. And instead of it being fought over patents, it’s going to be fought as the industry moves away from CLI and toward a model that doesn’t favor those who don’t innovate.
The Networking Nerd 
Funny to remember the advertisement of one of the first 10giga switch: Force10.
They argue that their cli was nearly the same than Cisco IOS, so switching from Cisco to Force10 was easy…
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Hi Tom,
I feel like you are missing a few important points. I agree with the fundamental discussion that there is some law-fare going on here to defeat competitors in a way inconsistent with general market expectations, but I feel like you aren’t taking a very objective look at the situation.
“That’s why they don’t want to file an injunction to get the switches banned. That could take years and involve lots of appeals.”
-If I started stealing all the content from your blog, made small modifications, called it my own, and stole a large chunk of your audience … would you wait years to bring down my blog? I find it likely and entirely appropriate that would you seek to have it removed. Having recently written a book, seeing it stolen and resold by unscrupulous individuals on the black market, the attitude of “so what if I stole it and made it better?” really bothers me. This is not how patents, copyrights, and intellectual property rights work, for good reason.
“Maybe SysDB was more copied that created.”
-Removing the word “maybe” would make this statement accurate. They did not even have the wherewithal to change the name. Having worked with Arista AM/SEs, their description of SysDB was identical to how it works in IOS-XR. I asked them “How does SysDB compare to Cisco’s IOS-XR?” and the response was “Oh, we have never heard of that” … followed by a very fast change of subject.
“So Arista built the best switch they could with the knowledge that some of their software may not have been 100% clean.”
-This statement victimizes Arista and suggests that their software “may not” have been honestly created. Their infringement is factual and the words “may not have” are unwarranted … perhaps “was not” would be better.
“And Cisco doesn’t forgive if you take what’s theirs.”
-Would you? This goes past just stealing what the CLI looks like. SysDB was a huge deal. The documentation was stolen, literally word for word, complete with grammatical errors. This is a pretty good measure of intent.
” … toward a model that doesn’t favor those who don’t innovate.”
-I can tell this is a dig against Cisco, but it cuts both ways. Since when does stealing IPR count as innovation?
Hello Nick,
I’d like to address a few of these arguments to the best ability that I can:
About the ITC – Yes, it’s true that Cisco sought relief from the ITC. According to Mark Chandler, it’s specifically because the ITC “generally acts more quickly than occurs in district court cases (http://www.zdnet.com/article/cisco-elevates-patent-battle-against-arista-with-itc-complaint/)”. That is true. But the curious thing here is that Cisco has never sought an injunction from the ITC before. Not even during the lawsuit against Huawei, which court documents proved to have lifted code directly from IOS into their OS. Why would the ITC even make sense here? Because Arista switches are imported from outside the US. If Arista makes switches in the US, the ITC can’t touch them. In fact, manufacturing switches in the US is one of the ways that Arista has been considering to get around the ITC injunction in this case.
More to the point of the ITC relief, why? Yes, speed is important. Yet Cisco waited ten years to go after EOS. They even waited six years after Arista launched. They did, however, wait about six months after Arista’s IPO to file their claims. To me, if someone stole your things, you go after them right away and shut it down. Maybe it took six years to build a court case? But why not wait until right before the IPO to extract maximum attention? That’s what David Cheraton did when he sued them in April 2014 (http://www.networkworld.com/article/2176330/data-center/arista-co-founder-may-have-switch-maker-by-its-jewels.html). I’m not going to ascribe a motive here, but my unprofessional opinion is that Cheraton wanted to get paid. Cisco wanted to hurt Arista’s sales when the market could react to their attempt to shut down SysDB.
To the point of having something shut down for stealing, I must admit that I have had to do that this year. Someone was indeed taking content from my blog (and others) and posting it verbatim with his name credited as the author. That’s against my policies for sharing my content. And yes, having content from a book stolen would be an even bigger hassle, so you definitely have my sympathies there. But when that happened, did you go to the publisher and have the book removed from sale? Did you prove that you were the author and have your publishing company take care of things? Or did you appeal to a different court to prevent the books from being published in one state and shipped across state lines? I know the ITC is a very specific organization with extremely specific resolutions. That’s why it’s very, very odd to me that Cisco never wanted to drag this into a court to prove they were right. They didn’t want fault. They wanted to remove Arista’s ability to import devices. Just odd to me.
With regard to SysDB, that’s a more technical issue. Yes, there is a SysDB in IOS-XR that performs functions that are very similar to those in EOS. How similar? I can’t say. I’ve never done a desk check of the two processing systems. How much code do they share? I don’t know. I’ve never examined them in depth. I’ve read through the ‘537 patent (https://www.google.com/patents/US7162537) a bit but it seems to cover a lot of ground. The use of “external” in the title would lead one to believe it doesn’t cover on-box methods, but perhaps they mean external to the kernel? Might need to be a bit more specific there?
The “pollution” of ideas in Silicon Valley isn’t just limited to Cisco and Arista. As someone jokingly told me this week, Cisco has staffed every major networking startup in the last decade through layoffs. People take ideas and go somewhere they can build them. Ask Mario Mazola and Prem Jain about that. I’m sure that more than a few people that worked at Cisco landed at Arista. I’m sure that’s been the case for over a decade. Arista was founded after the CRS-1 was announced, which was the first platform to run IOS-XR. Maybe that’s just a coincidence? But even past that, companies “borrow” or “steal” technology all the time. Many times there is a a licensing agreement or a mutual use clause of some kind. Yes, there are also lawsuits and drawn out fights about infringement. Again, it’s rare to see it taken to the ITC. Something that I didn’t post in the article but have said before is that it seems that Cisco doesn’t just want to make Arista stop using SysDB. They wan to make Arista pay publicly for using it in the first place. Maybe that’s misguided and wrong. But I also see a lot more chatter about this particular case than I ever have about any other infringement lawsuit filed by Cisco.
And lastly, the innovation comment. It was a bit of a dig at Cisco. And EMC. And Oracle. And Google. And every other company that chooses to find a way to protect their marketshare through a courtroom. If a judge and/or jury of peers finds that there was impropriety then the guilty parties should absolutely be punished to the extent of the law. But, for every clear cut case of Arista copying SysDB (as you allude to), we also have Oracle’s attack on Google for APIs, Apple and Samsung arguing about taps, swipes, and black rectangles, and a whole host of other exercises designed to do little more than keep retained lawyers working and tie up resources. I’m not anti-Cisco or anti-Oracle. I’m against people choosing to litigate instead of innovate. Yes, if it was theft in this case then Cisco should prevail and have the stolen code removed from the software. But choosing to enforce that removal through import bans produces an image to the networking community that Cisco wants payback, not justice.
Oh, one other last thing…some of my information in this case has come from people that have provided documentation and opinions though not legal insight. Those folks were from the Arista side of the argument. I’ve tried my best to keep to the facts where necessary and inject my opinion in clearly defined areas. Cisco hasn’t ever chosen to reach out to me about their side of things other than a short email in March of this year. I’d welcome a briefing from their people to show me how SysDB infringes or why they chose to use the ITC to enforce things. However, I would ask that they identify themselves clearly as such. My comment policy is fairly liberal and I approve almost everything. Let’s just make sure that everyone knows which side of the fence someone is starting from.
I have asked myself the same question regarding why Cisco went to the ITC. The only obvious possible answer that popped into my head is: prior art. The ITC does not have the ability to influence a patents validity. A court would have that ability. If there was a chance that prior art could be demonstrated; that the patent itself could be questioned; I’m sure it would be in Cisco’s best interest to keep things in the ITC.
I am not a lawyer. I do not have inside information. I am only guessing, based on the various IP lawsuits that I have seen play out over recent years.