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Trial Lawyers Brace for Blockbuster Cases in 2016

The Recorder


Is that Facebook tagging tool illegal in addition to unnerving? Is the technology running your Android phone based on a stolen idea? Is your Uber driver a free agent? What exactly should FedEx do to prevent the shipment of illegal goods?

These questions are at the heart of high-stakes cases slated for trial in 2016.

The disputes feature cutting-edge technology and long-standing beefs. Often billions of dollars hang in the balance. And in some cases, the outcomes could shape entire industries in Silicon Valley and beyond.


This might be the year Keker & Van Nest partner Robert Van Nest relives the famed Oracle v. Google trial—twice.

Van Nest is set to reprise the "World Series of IP"—a copyright showdown over the right to run the Java technology on the Android operating system—before U.S. District Judge William Alsup of the Northern District of California this spring. As things stand now, he's also set to defend Arista Networks Inc. over patent and copyright claims brought be rival Cisco Systems Inc. in a November trial before U.S. District Judge Beth Labson Freeman. The defense in that case may sound familiar: Arista argues that the operating system for its ethernet switches borrows only from Cisco's industry-standard command line interface, which is not protectable expression.

Van Nest will face some big hurdles in each case. The U.S. Court of Appeals for the Federal Circuit ruled in 2014 that the Java application programming interface is copyrightable. Van Nest will try to save the case by arguing that Google Inc.'s copying was a fair use of Oracle Corp.'s computer code. Arista and Cisco, meanwhile, have both absorbed casualties as their patent war plays out on three battlefields.

U.S. International Trade Commission staff have determined that Arista infringes Cisco's patents, though an administrative law judge and the commission itself have yet to weigh in. And the Patent Trial and Appeal Board has ordered June trials on two Arista petitions for inter partes review of Cisco patents, while rejecting five other attempts. Fish & Richardson represents Arista before the two agencies.

If the cases reach trial, Van Nest and his Keker colleagues would square off against Orrick, Herrington & Sutcliffe in an Oracle trial and Quinn Emanuel Urquhart & Sullivan for Cisco, though Kirkland & Ellis and several other firms could have a hand. On top of those blockbuster cases, Van Nest also is scheduled to defend Pure Storage Inc. in a Delaware patent infringement trial against EMC Corp. in March.

"Looking forward to an exciting 2016!" Van Nest said via email last week.

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