By Eric Schweibenz and John Presper
On February 13, 2015, ALJ David P. Shaw issued Order No. 4 in Certain Network Devices, Related Software and Components Thereof (I) (Inv. No. 337-TA-944) denying Respondent Arista Networks, Inc.'s ("Arista") motion requesting consolidation of that investigation with Certain Network Devices, Related Software and Components Thereof (II) (Inv. No. 337-TA-945).

By way of background, this investigation is based on a December 19, 2014 complaint and January 8, 2015 supplement to the complaint filed by Cisco Systems, Inc. ("Cisco") alleging violation of Section 337 in the importation into the U.S. and sale of certain networking equipment and components and software thereof that infringe one or more claims of U.S. Patent Nos. 7,162,537; 8,356,296; 7,290,164; 7,340,597; 6,741,592; and 7,200,145.  See our December 29, 2014 and February 5, 2015 posts for more details on the complaint and notice of investigation, respectively.

According to the Order, Arista argued that failure to consolidate would be "highly prejudicial" to Arista and would reward Cisco for "gaming the system" by requesting two "unnecessarily separate" investigations that will "result in significant inefficiencies with respect to public and private resources" and "set a potentially dangerous precedent that will encourage future complainants to file piecemeal complaints."  Cisco argued against consolidation in part because the two investigations involve "unrelated patents, different technologies, and different legal and factual issues," and because "Arista itself acknowledges that consolidation would add up to six months to the length of these proceedings, delaying and prejudicing Cisco's right to speedy resolution of its claims of infringement."  The Commission Investigative Staff opposed the motion on the grounds that Arista failed to show that consolidation would allow the Commission to "expedite the performance of its functions" given that the two investigations combined implicate 12 separate patents and over 200 asserted claims, and because "[n]one of the patents asserted in the 944 Investigation are the same or related to the patents asserted in the 945 Investigation."

Having considered the arguments of the parties, the ALJ concluded that consolidating the two investigations "would create an investigation of such large scope that it would be burdensome to complete the investigation within the previously set 16 month target date," and would not "conserve public resources to a considerable degree, inasmuch as the total agency hours required to litigate and adjudicate a consolidated investigation would likely approximate the total agency hours required to litigate and adjudicate two separate investigations."  Accordingly, the motion was denied.

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