Robert A. Van Nest

It has been a busy couple years for Van Nest, but the titan of tech litigation is ready for more.

Van Nest brought home an incalculably significant victory for Alphabet Inc.’s Google in litigation brought by Oracle Corp., regarding the Android smartphone operating system and concepts it borrowed from Oracle’s programming language, Java.

He was able to convince a jury that Oracle encouraged people to use and copy aspects of Java in order to increase the influence of the product and that the company cannot turn around after the fact and claim that it was wronged.

The case is now on appeal awaiting briefing and Van Nest feels confident about his position. He said Oracle did not challenge a jury instruction but instead appealed that there was not sufficient evidence at trial to support the jury’s findings. That is an argument he is ready to have.

“The evidence of fair use was very strong,” he said. “It included not only admissions from Oracle about how transformative Android was but also the fact that both Sun [Microsystems] and Oracle tried and failed to use Java to build a smartphone.”

Van Nest said that Oracle’s overall success as a company also undermined any arguments that Google’s success with Android somehow negatively impacted the plaintiff.

“Their experts weren’t able to provide any significant evidence of market harm,” he said. “In fact Mr. Ellison testified that Java was doing well.”

Van Nest used a similar argument to defeat claims brought by Cisco Systems Inc. against his client, Arista Networks Inc. Van Nest contended that Arista’s use of a command line programming interface for its network products was legally defensible because there are limited technological alternatives and Cisco established this technique as an industry standard, rather than a proprietary solution.

In both cases Van Nest essentially contended that a tech company traded away its ability to claim ownership over a technological innovation because the company benefited more by making the technique ubiquitous and expanding its reach, increasing the visibility of its own products, than by keeping it to themselves. He contended that Cisco knew other companies were copying its techniques and essentially encouraged them to do so.

Van Nest convinced a jury to bat aside Cisco’s claim for $335 million in damages.

“There was evidence from Dell, evidence from Hewlett-Packard, evidence from Juniper Networks,” he said. “All of that evidence pointed to the long-standing practice of Cisco to promote [command line interface] as an industry standard.”

That case is also on appeal.

— Joshua Sebold