Fresh off his big win last spring for client Google Inc. over Oracle America Inc. regarding Google's use of Java programming language in its Android mobile operating system, Van Nest is now set for an encore fair use fight for client Arista Networks Inc. "Another technology-based copyright claim," he said, referring to Cisco Systems Inc.'s allegations that his client reproduced Cisco's command line interface.
Trial is set for late November in the Northern District before U.S. District Judge Beth Labson Freeman of San Jose. Cisco Systems Inc. v. Arista Networks Inc., 5:14-cv-5344 (N.D. Cal., filed Dec. 5, 2014). "Arista is a strong innovator in high-speed networking," Van Nest said. "This is a little bit like Oracle versus Google, in that we are dealing with copyrighted work that has been used for a long time in the industry and thought to be free.
"It just happens that these two cases are being tried in the same year," he said. Van Nest isn't telegraphing his punches, but he might be able to retool his strong argument in the Google trial. He pushed back hard against Oracle's claim that Google unfairly employed a "fair use excuse" to justify Java code infringement. "That was a particularly unsuitable claim to use with sophisticated Bay Area jurors," he said. In his closing argument, he told the jury, "Fair use is not an excuse, ladies and gentlemen. The law endorses fair use for innovation. We here in Northern California know that the best. We're No. 1 in the world for innovation...the air we breathe...the cars we drive...are because of innovation. And to call that an excuse is just wrong." Oracle America Inc. v. Google Inc., 10-cv-3561 (N.D. Cal., filed Aug. 12, 2010).
The jury unanimously rejected Oracle's infringement claims. Oracle's new trial motion is pending before U.S. District Judge William H. Alsup of San Francisco, with a trip to the U.S. Court of Appeals for the Federal Circuit a near certainty if Alsup rules for Google.
Meanwhile, Van Nest was battling in federal court in Delaware for client Pure Storage Inc., a Mountain View-based maker of solid-state data storage devices, in patent infringement litigation with Massachusetts-based EMC Corp. On Sept. 1, U.S. District Judge Richard G. Andrews of Wilmington, Delaware, granted Pure Storage a new trial, vacating a $14 million jury verdict in March on EMC's claim that Pure Storage infringed a data storage patent. The jury cleared Pure Storage of infringing two other patents in dispute in the case. EMC Corp. v. Pure Storage Inc., 1:13-cv-01985 (D. Del., field Nov. 26, 2013).
"Good news," Van Nest said. "EMC wanted $81 million in lost profits and royalties. We look forward to further proceedings."
— John Roemer
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