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Colorable Difference Test Not Applicable to CDO Sanctions, ITC Blog

July 2017


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A recent ITC enforcement decision highlights the importance of redesigns as an effective strategy for Respondents at the ITC.

In Certain Network Devices, Related Software and Components Thereof (I), Inv. No. 337-TA-944, Cisco Systems, Inc. accused Arista Networks, Inc. of infringing certain patents.  The Commission ultimately found that Arista violated § 337 as to some, but not all, of the patents and issued a limited exclusion order (LEO) and cease and desist order (CDO) on June 23, 2016.  On August 26, 2016, Cisco filed an enforcement complaint alleging that Arista violated the LEO and CDO. Arista argued that the products were redesigned and no longer infringed the patents at issue.  On June 20, 2017, ALJ Shaw issued an Enforcement Initial Determination holding that the redesigned products did not violate the June 23, 2016 CDO.

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