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Bob Van Nest Named Litigator of the Week

The American Lawyer

Facing a $335.2 million damages demand from networking giant Cisco Systems Inc., Robert Van Nest and his team at Keker & Van Nest mounted a multi-pronged defense during an intellectual property trial for Arista Networks Inc. over the past two weeks in San Jose, California federal

It was the type of nuanced approach that can sometimes get lawyers in trouble with lay juries in IP trials. Indeed, during closing arguments on Monday, Cisco’s lead lawyer, Quinn Emanuel Urquhart & Sullivan’s David Nelson, characterized Van Nest’s multiple defenses as scattershot excuse-making by Arista. “If you have one defense that’s really strong, why do you need five?” he asked.

Wednesday’s verdict would seem to answer Nelson’s question.

Van Nest contended Arista didn’t infringe Cisco’s copyrighted command line interface, or CLI—its system for interacting with network switches that serve as the spine for large computer networks. On top of that, Van Nest argued that Cisco had abandoned its copyright by declining to go after dozens of competitors who mimicked elements of its CLI—including some that copied more commands than Arista.

Van Nest also argued that Arista’s copying was a protected fair use under copyright law since it used only used a small portion of Cisco’s commands and used them in a transformative way in its switches, which have been adopted in cloud data centers by companies such as Microsoft Inc. and Facebook Inc. 

Although the San Jose federal jury found that Arista infringed Cisco’s copyrights and rejected Arista’s fair use defense, jurors sided with Arista on its defense under the so-called scènes à faire doctrine which allows for copying in instances where outside forces essentially leave no way to express an idea besides the copyrighted expression. 

The verdict awarded Cisco no damages in a lawsuit that Cisco has touted publicly since it was filed in 2014.

or his part, Van Nest said in a phone interview Thursday that he thinks all of Arista’s various defenses were driving at the same core theory of the case.

“I think there were many ways on the verdict form to get to the same issue which these are ordinary common commands that are dictated by industry standard that had been around for forty years,” Van Nest said.

Van Nest said that he thinks that jurors were persuaded by two key pieces of evidence: Cisco put restrictions on engineers developing its CLI in picking the two-to-five word command phrases to avoid being creative and to adopt widely accepted terms and acronyms. Arista also presented testimony from former Cisco executives who said the company had decided to let others use the CLI and promoted it as a de facto industry standard to bolster its position as a leader in the market.

The verdict further cements Van Nest as the lawyer to call for Silicon Valley companies facing highstakes copyright infringement claims. Van Nest and his team in May won a verdict from a San Francisco jury for Google Inc. There, with nearly $9 billion potentially at stake, the jury found that Google’s use of copyrighted material belonging to Oracle Corp. in the Android mobile operating system was a fair use.

As is his typical practice in long technology cases, Van Nest spread the work around to his colleagues. A total of seven Keker & Van Nest lawyers examined witnesses at trial. Van Nest said the practice has multiple benefits: It allows the client to present a diverse set of lawyers to the jury, it prevents jurors from getting bored of seeing the same lawyer over and over again, and it allows each lawyer to focus more energy on his or her witnesses.

Still, Van Nest handled key witnesses at trial, including direct examination of Arista CEO Jayshree Ullal, who used to work at Cisco. Van Nest also gave opening and closing arguments and cross-examined longtime Cisco CEO John Chambers. Van Nest said Thursday that he was disappointed
that jurors didn’t side with Arista on fair use, but that it was a “closer” issue than it had been in Oracle v. Google. Where Oracle and Google never competed head-to-head in the smartphone and tablet market, Arista and Cisco continue to fight for customers trying to sell high-end network switches.

“It’s more difficult to mount a fair use defense when you’re competing in some markets,” Van Nest said.